Vellaiammal vs Thirumal Asari and Others

This is a Criminal Revision Case filed by P.W. 1 Vellaiammal in C.C. No. 635 of 1982 on the file of the Court of the learned Judicial Second

Class Magistrate-III, Madurai, against the judgment delivered by the said Court in the said case on 22-7-1983, acquitting A-1 to A-5/respondents

1 to 5 herein under S. 248(1) Cr.P.C., finding that they are not guilty under Ss. 143, 323 and 325 I.P.C. The sixth respondent in this Criminal

Revision Case is the State represented by the Sub-Inspector of Police, C-2 Oomachikulam Police Station.

The Sub-Inspector of Police, C-2 Oomachikulam Police Station filed a charge-sheet against A-1 Thirumal Asari, A-2 Karunanidhi, A-3

Veerabathiram alias Nallan, A-4 Alagammal and A-5 Lakshmi under S. 143, S. 323 and S. 325, I.P.C. alleging that on 5-10-1981 at about 6

p.m. at Kancharampettai near the house of P.W. 1 Vellaiammal, A-1 to A-5 with a common object, gathered as an unlawful assembly and that A-

1 Thirumal Asari abused P.W. 1 and beat her on her left cheek with the handle of an umbrella, as a result of which one of her teeth fell down. At

that time, P.W. 1 told the accused that with respect to the place, they should not dig any pit because there has been a case pending with respect to

that place in a civil Court. In spite of the said intimation regarding the case pending in the Court, A-1 had resorted to the above act against P.W. 1.

A-3 abused the son of P.W. 1 and also beat him. A-4 and A-5 abused P.W. 2 and beat her with hand. They also dragged her by catching hold of

her tuft and also trampling her with their legs. The lowers Court had framed charged against A-1 under S. 325, I.P.C. and under S. 143, I.P.C.

The lower Court had also framed charges against A-2 to A-5 under S. 341 and under S. 143, I.P.C.

On behalf of the prosecution, P.W. 1 Vellaiammal, P.W. 2 Vellathayee, P.W. 3 Rasu, P.W. 4 Sundaram, P.W. 5 Dr. Mohideen, Medical

Officer and P.W. 6 Arumugham, Head Constable were examined. Ex. P. 1 complaint and Ex. P-2 wound certificate were filed on behalf of the

prosecution.

On the consideration of the evidence available on record, the lower Court held that the prosecution has not proved its case against the accused

beyond all reasonable doubt and acquitted them under S. 248(1), Cr.P.C. Aggrieved by the above decision of the lower Court, P.W. 1

Vellaiammal has come forward with this Criminal Revision Case.

It is inter alia contended on behalf of the revision petitioner herein that the lower Court has not properly considered the evidence available on

record and as such, the acquittal of the accused/respondents 1 to 5 herein under S. 248(1), Cr.P.C. by the lower Court is not correct and in

accordance with law.

The point for consideration in this Criminal Revision Case is whether there is any infirmity in the judgment of the lower Court.

In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, , it was held as follows :-

It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not

have thought fit to appeal; but this jurisdiction should be exercised by the High Court only in exceptional cases, when there is some glaring defect in

the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of S.

439 forbids a High Court from converting a finding a acquittal into one of conviction and that makes it all the more incumbent on the High Court to

see that it does not conert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly

convert a finding of acquittal into a finding of conviction. This place limitations on the power of the High Court to set aside a finding of acquittal in

revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such

exceptional cases which would cover all contingencies. Some cases of this kind however may be indicated, which would justify the High Court in

interfering with a finding of acquittal in revision. These cases may be : where the trial court has no jurisdiction to try the case but has still acquitted

the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has

wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial

court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other

cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of

acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the

provisions of S. 439(4).

Where the appeal Court wrongly ruled out evidence which was admissible, the High Court would be justified in interfering with the order of

acquittal in revision, so that the evidence may be re-appraised after taking into account the evidence which was wrongly ruled out as inadmissible.

But the High Court should confine itself only to the admissibility of the evidence and should not go further and appraise the evidence also : D.

Stephens Vs. Nosibolla, and Logendra Nath Jha and Others Vs. Shri Polailal Biswas, , Rel. on.

Two contingencies arise in such a case as to the nature of the order to be passed. In the first place there may be an acquittal by the trial court. In

such a case, if the High Court is justified, on principles enunciated above, to interfere with the order of acquittal in revision, the only course open to

it is to set aside the acquittal and send the case back to the trial court for retrial. But there may be another type of case, namely where the trial

court has convicted the accused while the appeal court has acquitted him. In such a case, if the conclusion of the High Court is that the order of the

appeal court must be set aside, the question arises whether the appeal court should be ordered to re-hear the appeal after admitting the statement it

had ruled out or whether the should necessarily be a retrial. So far as this is concerned, it is open to the High Court to take either of the two

courses. It may order a retrial or it may order the appeal court to re-hear the appeal. It will depend upon the facts of each case whether the High

Court would order the appeal court to re-hear the appeal or would order a re-trial by the trial court. Where the entire evidence is there and it was

the appeal court which ruled out the evidence that had been admitted by the trial court, the proper course is to send back the appeal for re-hearing

to the appeal court. In such a case the order of the trial court would stand subject to the decision of the appeal court on hearing.

In Mahendra Pratap Singh Vs. Sarju Singh and Another, , it was observed by his Lordship Hidayatullah, J., as he then was, as follows :-

In revision, the learned Judge in the High Court went into the evidence very minutely. He questioned every single finding of the learned Sessions

Judge and gave his own interpretation of the evidence and the inferences to be drawn from it. He discounted the theory that the weapon of attack

was a revolver and suggested that it might have been a shot gun or country made pistol which the villagers in the position of Kuldip and Sarju could

not distinguish from a revolver. He then took up each single circumstance on which the learned Sessions Judge had found some doubt and

interpreting the evidence de novo held, contrary to the opinion of the Sessions Judge that they were acceptable. All the time he appeared to give

the benefit of the doubt to the prosecution. The only error of law which the learned Judge found in the Sessions Judge''s judgment was a remark by

the Sessions Judge that the defence witnesses who were examined by the police before they were brought as defence witness ought to have been

cross-examined with reference to their previous statements recorded by the police, which obviously in against the provisions of the Code. Except

for this error, no defect of procedure or of law was discovered by the learned Judge of the High Court in his appraisal of the judgment of the

Sessions Judge. As stated already by us, he seems to have gone into the mater as if an appeal against acquittal was before him making no

distinction between the appellate and the revisional powers exercisable by the High Court in matters of acquittal except to the extend that instead

of convicting the appellant he only ordered his retrial. In our opinion, the learned Judge was clearly in error in proceedings as he did in a revision

filed by a private party against the acquittal reached in the Court of Session.

The practice on the subject has been stated by this Court on more than one occasion. In D. Stephens Vs. Nosibolla, , only two grounds are

mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They are that there must exist a

manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining these

two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of

Session or if even there is misappreciation of evidence. Again in Logendra Nath Jha and Others Vs. Shri Polailal Biswas, , this Court points out

that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This

Court observes that is it not sufficient to say that the judgment under revision is ""perverse"" or ""lacking in true correct perspective"". It is pointed out

further that by ordering a retrial, the dice is loaded against the accused, because however must the High Court may caution the Subordinate Court,

it is always difficult to re-weight the evidence ignoring the opinion of the High Court, Again in K. Chinnaswamy Reddy Vs. State of Andhra

Pradesh, , it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such

as that the Court has no jurisdiction to try the case or the Court had shut out some material evidence which was admissible or attempted to take

into account evidence which was not admissible or had overlooked some evidence. Although the list given by this Court is not exhaustive of all the

circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be

analogous to those actually indicated by this Court. As stated not one of these points which have been laid down by this Court was covered in the

present case. In fact on reading the judgment of the High Court it is apparent to us that the learned Judge had re-weighed the evidence from his

own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This we do not conceive to be his duty in

dealing in revision with an acquittal when Government has not chosen to file an appeal against it. In other words, the learned Judge in the High

Court has not attended to the rules laid down by this Court and has acted in breach of them.

In Ramaswami Vs. Muthu and Others, , Ratnavel Pandian, J. Observed as follows :-

In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, it has been held that the interference of the High Court with a finding of acquittal in

revision would be justified only in the following cases, viz., where the trial Court has no jurisdiction to try the case but has still acquitted the

accused, or where the trial Court has wrongly shut out the evidence which the prosecution wished to produce, or where the appeal Court has

wrongly held evidence, which was admitted by the trial Court, to be inadmissible, or where material evidence has been overlooked either by the

trial Court or by the appeal Court, or where the acquittal is based on a compounding of the offence which is invalid under the law. It has also been

held that these and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably

interfere with the order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not

do directly in view of the provisions of Section 439(4). Following and amplifying the above observations, it has been held in Mahendra Pratap

Singh Vs. Sarju Singh and Another, , that although the list of grounds given in the said decision is not exhaustive of all the circumstances in which

the High Court may interfere with an acquittal in revision, it is obvious that the defect in the judgment under revision must be analogous to those

actually indicated by the Supreme Court. Then, the learned counsel cited Akalu Ahir and Others Vs. Ramdeo Ram, wherein their Lordships of the

Supreme Court, after having referred to all the leading decisions on this point including the above two decisions, have held that the power of

revision conferred on a High Court by Section 439 read with Section 435, Criminal Procedure Code, is an extraordinary discretionary power

vested in the superior Court to be exercised in aid of justice, in other words, to set right grave injustice, that the High Court, when approached by

a private party for exercising its power of revision from an order of acquittal, should refrain from interfering except when there is a glaring legal

defect of a serious nature, which has resulted in grave failure of justice, and that the power being discretionary, it has to be exercised judicially and

not arbitrarily. Next the learned counsel brought to my notice the decision in Satyendra Nath Dutta and Another Vs. Ram Narain, for the

proposition that where the judgment of the Sessions Judge did not suffer from any manifest illegality and interests of justice did not require the High

Court to interfere with the order of acquittal passed by the Sessions Court, the setting aside of the acquittal and ordering a re-trial is a transgression

of the narrow limits of the revisional jurisdiction u/s 439(4).

Having regard to the server limitations imposed on this Court''s power to interfere with an acquittal, that too at the instance of the private party,

when the State has not preferred any appeal, I am of the view that this is not a fit case warranting my interference with the finding of acquittal made

by the trial Judge.

In Ayodhya Dube and Others Vs. Ram Sumer Singh, it is observed as follows :-

In connection with the murder of two persons, Ram Pyare Singh and Awadh Bihari Singh and injuries caused to some others, 21 persons were

tried by the learned Sessions Judge of Basti for offences under Ss. 147 and 149 read with S. 309 etc. etc. Nine out of the 21 accused persons

were convicted on various counts while the remaining accused including the present appellants were acquitted. The nine convicted accused

preferred an appeal to the High Court while one Ram Sumer Singh (first informant in the case) filed a criminal revision case against the acquitted

accused. The High Court dismissed the appeal preferred by the convicted accused though the sentence of death passed on four of them was

altered to imprisonment for life. The criminal revision case filed by Ram Sumer Singh was allowed and, having regard to the limitation of revisional

powers, the acquittal of the appellants was set aside and a retrial was ordered. The appellants have appealed to this Court against the judgment of

the High Court setting aside their acquittal and ordering a retrial. A perusal of he judgments of the High Court and the Sessions Judge shows that

the High Court was fully alive to the scope and extent of its revisional powers when dealing with orders of acquittal. The High Court referred to the

judgment of his Court in K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, after referring to the decision of this Court the High Court said :

In the instant case we find that this is a case of non-application of mind on the part of the court below. The probative value of the First Information

Report (Ex. Ka-19) has been entirely ignored. The individual testimony of the eye-witnesses has not been discussed and their reliable testimony

has been ignored, from which it follows that material evidence has not been considered and it has been overlooked. The entire judgment is full of

inconsistencies. The court below has misquoted the evidence at some places, for example, while dealing with the copy of statement (Ex. Ka-18).

The judgment consists of faulty reasoning and lack of judicial approach. Accepted canons for appreciating evidence have been thrown to the wind.

The conclusions on the question of motive are against the weight of overwhelming evidence in the case. In our opinion, the view expressed by the

court below has resulted in grave miscarriage of justice so far as the opposite parties Uma Shanker, Girja Shanker, Gauri Shanker, Achhaibar,

Jhabbar, Bansu, Ram Katal, Ayodhya Dube and Vindhyachal are concerned. The above, in our opinion, are exceptional circumstances which

compel us to order retrial of the aforesaid opposite parties.

In our view the High Court has given adequate reasons for interfering with the acquittal and ordering a retrial of the appellants. We may add that

the High Court also expressed the view that the instances mentioned by this Court in K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, as

justifying interference with orders of acquittal in the exercise of revisional powers were illustrative and not exhaustive. We agree with the view

expressed by the High Court and we only wish to say that the criminal justice system does not admit of ""pigeon-holing"". Life and the law do not fall

neatly into slots. When a court starts laying down rules enumerated (1), (2), (3), (4) or (a), (b), (c), (d), it is arranging for itself traps and pitfalls.

Categories, classifications and compartments, which statute does not mention, all tend to make law ''less flexible, less sensible and less just''.

In the instant case before us, we find that the respondents 1 to 5 herein denied the prosecution case, when they were questioned under the

provisions of S. 313, Cr.P.C. No witness was examined on behalf of the accused. P.W. 1 and P.W. 2 sustained injuries during the occurrence. In

their evidence, it is seen that it was A-1 who had pierced on the cheek of P.W. 1 with an umbrella, as a result of which, one of the teeth of P.W. 1

got damaged and fell down. According to these two witnesses, bleeding injury was sustained by P.W. 1 during the time of the occurrence. Their

evidence is also to the effect that A-2 to A-5 beat P.W. 2. P.W. 3 has also stated in his evidence that P.W. 1 was attacked by A-1 with an

umbrella, as a result of which P.W. 1 lost one tooth and also sustained injury on her cheek. It is relevant in this connection to note that P.W. 5,

Medical Officer, who examined P.W. 1 has stated in his evidence that he found one of the teeth of P.W. 1 missing during the time of occurrence

and that P.W. 1 showed the broken tooth to him. But, it is significant to note that in his evidence P.W. 5 specifically states that he did not notice

any injury on the outer side of the cheek of P.W. 1 corresponding to the tooth that had given way and fell down. The Medical Officer, P.W. 5, has

specifically stated in his evidence that there was no external injury at all sustained by P.W. 1. It might have been proved that P.W. 1 might have

lost one of her teeth. But, there is no acceptable evidence available on record to show that the said tooth fell down due to the attack by A-1.

Regarding the alleged attack on P.W. 1 by A-1, though the alleged eye-witnesses state in their evidence that it was due to the attack on the cheek

of P.W. 1 with an umbrella by A-1 her tooth fell down, the said oral evidence adduced through the alleged eye-witnesses is not corroborated by

the medical evidence adduced through P.W. 5, Medical Officer, in this case. P.W. 6, investigating officer, states in his evidence that the occurrence

took place on 6-10-1981. He prepared a memo, and sent P.W. 1 for treatment to the hospital. But, it is two months subsequent to this date, on 6-

1-1982, P.W. 6 had registered this case and sent the FIR in this case to the Court on 11-1-1982. He had also recovered the fallen tooth of P.W.

1 and prepared the rough sketch of the place of the occurrence, Ex. P-4 about two months subsequent to the date of the occurrence. No

explanation had been offered on behalf of the prosecution regarding this inordinate delay. Further, the motive for attack on P.W. 1 has not been

brought out in the evidence adduced on behalf of the prosecution. Further, the prosecution has not elicited specifically from P.W. 5 as to whether it

was possible for a tooth of P.W. 1 falling when she had been attacked with an umbrella on her cheek. Since the medical evidence in this case is not

in consonance with the evidence adduced through the alleged eye-witnesses, the lower Court is correct in rejecting the case put forward by the

prosecution against the respondents 1 to 5 herein. No medical certificate had been produced before the lower Court regarding the alleged attack

on P.W. 2. So, it is seen that since no injury was found on P.W. 2, she had not been sent for treatment by the police. Further, the lower Court

observed that the injuries sustained by P.W. 1 were not inflicted by the accused/respondents 1 to 5 herein. This decision had been arrived at by

the lower Court, after discussing the evidence available on record, both oral and documentary. Since no medical treatment had been given to P.W.

2, it is seen that she was also not attacked by anyone of the accused/respondents 1 to 5 herein. Thus, we find that the prosecution has not proved

its case against the accused/respondents 1 to 5 herein beyond all reasonable doubt. Under the circumstances, the finding of the lower Court that

the respondents 1 to 5 herein are not guilty under Ss. 143, 323 and 325, I.P.C. is correct and in accordance with law. The acquittal of

respondents 1 to 5 herein under S. 248(1), Cr.P.C. by the lower court is correct. There is no infirmity in the judgment of the lower court. Hence,

the criminal revision case is dismissed.

Revision dismissed.