Madras High Court
R.Eswaran vs State Rep. By on 20 October, 2021
Crl.A.(MD) No.554 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:20.10.2021
CORAM
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
CRL.A (MD)No.554 of 2018
R.Eswaran ... Petitioner/P.W.2
-vs-
1.State rep. by
The Inspector of Police,
Saminathapuram Police Station,
Cr.No.66 of 2009,
Dindigul District. ... 1st respondent/Complainant
2.Senthilkumar ... 2nd respondent/Accused
PRAYER:Criminal Appeal filed under Section 372 of the Code of
Criminal Procedure against the judgment passed by the Principal
Sessions Court, Dindigul, Dindigul District in S.C.No.160 of 2009 dated
09.04.2010.
For Appellant :: Mr.Mahaboob Athiff
Legal Aid Counsel
For R-1 :: Mr.A.Thiruvadikumar,
Additional Public Prosecutor
For R-2 :: Mr.Jerin Mathew,
Legal Aid Counsel
1/17
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Crl.A.(MD) No.554 of 2018
JUDGMENT
(Judgment of the Court was delivered by V.BHARATHIDASAN, J.)
This appeal has been preferred against the order of acquittal passed
by the Principal Sessions Court, Dindigul, Dindigul District in
S.C.No.160 of 2009, dated 09.04.2010. The sole accused/second
respondent herein stood charged for an offence under Section 302 I.P.C.
The trial Court acquitted the accused. Now, challenging the order of
acquittal, this appeal has been filed by the appellant/P.W.2, the father of
the deceased.
2. The case of the prosecution in brief is as follows:-
The decease one Radha @ Balamani is the wife of the accused.
Suspecting that she was having illicit intimacy with one Vivek, there
were frequent quarrels between the husband and wife. On 12.04.2009, at
about 9.15 a.m., the accused cut the deceased with a Bill Hook and
severed her head and placed the head in the house of P.W.4, who is the
friend of the deceased and left. Thereafter, he surrendered before P.W.7,
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Crl.A.(MD) No.554 of 2018
Village Administrative Officer of Midapatti and has given extra judicial
confession admitting his guilt and he was produced before P.W.16, the
Sub-Inspector of Police working in the respondent police station, along
with a complaint, based on that he registered the F.I.R(Ex.P13) in Crime
No.66 of 2009 for the offence under Section 302 I.P.C. P.W.18, the
Inspector of Police working in the respondent police station, commenced
the investigation and proceeded to the scene of occurrence, where he
prepared the Observation Mahazar(Ex.P2) and Rough Sketch(Ex.P16).
Since the head of the deceased was severed, he conducted inquest on the
Trunk and prepared the inquest report(Ex.P17), then he collected the
bloodstained cement floor and ordinary cement floor from the scene of
occurrence. Then, the head of the deceased was brought and joined with
the Trunk, thereafter, he conducted another inquest on the dead body and
prepared the inquest report(Ex.P19) and sent the body for postmortem
autopsy. P.W.10, a Doctor working in the Government Hospital, Palani,
has conducted postmortem autopsy on the dead body and given a
postmortem certificate(Ex.P8) and found the following injuries:
“Trunk:presented separately I out head which is cut at the level
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Crl.A.(MD) No.554 of 2018
of C4-C5 Cervical Vertebra. Major Vessels are cut. Soft tissues
are severed. All internal organs were pale. Heart Chambers
empty. Hyoid intact. Stomach contains 200 ml of undigested
food particles uterus empty.
Head: Cut at the level of C3 – C4 major vessels are
cut.
(1) A lacerated injury of 10 X 5 cm X BD over the (LL)
occipital regim of scalp.
(2) A lacerated injury of 10 X 5 X 2 cms over the (RL)
posterior auricular regim of scalp.
(3) A lacerated injury of 5 X 3 X 2 cms over the midline
over the back just above the cut end.
Skull and membrane intact. Brain pale.”
He was of the opinion that the deceased would appear to have died of
shock and hemorrhage due to the injuries sustained.
3. P.W.18, continued the investigation and recorded the statement
of other witnesses and on completion of investigation, filed the final
report.
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4.Considering the above materials, the trial Court framed the
charge and the accused denied the same as false. In order to prove its
case, the prosecution examined as many as 19 witnesses, marked
19 documents and also produced 19 material objects.
5. Out of the witnesses examined, P.W.1, a neighbour of the
deceased is an eyewitness to the occurrence, but he turned hostile.
P.W.2 is the father of the deceased. He spoke about the earlier quarrel
between the deceased and the accused. According to him, after the
occurrence, he saw the accused carrying the severed head in a
two-wheeler.
6. P.W.3, is the mother of the deceased. She spoke about the
earlier quarrel between the husband and wife. P.W.4, is the father of
P.W.6, who is the friend of the deceased and both studied together in a
tutorial college. According to P.W.4, after the occurrence, the accused
took the severed head of the deceased and placed it in their house and
thereafter, the police had taken the head.
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Crl.A.(MD) No.554 of 2018
7. P.W.5 is the wife of P.W.4 and P.W.6 is the daughter of P.W.4 and
they reiterated the evidence of P.W.4. P.W.7, is the Village Administrative
Officer of Midapatti Village, before whom, the accused has appeared and
given extra judicial confession. P.W.8 is the witness to the recovery of
material objects. P.W.9, is the neighbour of P.Ws.4 to 6. According to
him, after hearing the noise from the house of P.W.4, he went there and
saw the head and he caught hold of the accused and handed over to the
police. He is also a witness to the recovery of blood stained saree of
P.W.5.
8. P.W.10, a Doctor working in the Government Hospital, Palani,
has conducted postmortem autopsy on the dead body and given a
Postmortem Certificate (Ex.P8). P.W.11, is an Assistant Director
working in the Forensic Laboratory, Madurai. He has examined the
bloodstained material objects and given reports Exs.P10 and P11.
P.W.12, is the person running a Tutorial College, where the deceased and
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Crl.A.(MD) No.554 of 2018
P.W.6 studied. P.W.13 is the photographer, who had taken photographs of
the dead body. P.W.14 is the Head Constable, who handed over the
F.I.R., to the Court. P.W.15, is the Head Constable, who identified the
dead body for postmortem. P.W.16, the Sub-Inspector of Police working
in the respondent police station, registered the F.I.R.
9. P.W.17, is the Assistant Professor working in the Government
Medical College Hospital, Madurai. He has examined and confirmed
that the Cervical bone is that of the deceased. P.W.18, is the Investigating
Officer, who conducted inquest on the dead body, arrested the accused
and recorded the statement of witnesses and on completion of
investigation, filed the final report.
10. The above incriminating materials were put to the accused
under Section 313 Cr.P.C., and the accused denied the same as false. On
his side, he has not examined any witnesses and marked any documents.
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11. Having considered the materials available on record, the trial
Court acquitted the accused. Challenging the order of acquittal, P.W.2,
father of the deceased is before this Court with this Criminal Appeal.
12. We have considered the submissions of Mr.Mahaboob Athiff,
learned counsel appearing for the appellant, Mr.A.Thiruvadikumar,
learned Additional Public Prosecutor appearing for the State and
Mr.Jerin Mathew, learned counsel appearing for the second respondent.
13. The sole eye-witness - P.W.1, turned hostile. The other
witnesses namely P.Ws.2 to 6, said to have seen the accused carrying the
severed head in a two-wheeler and threw it in the house of P.Ws.4 to 6.
However, the trial Court disbelieved their evidence on the ground that
there is lot of discrepancies regarding the time of placing the head and
also recovery of the same by the respondent police. That apart, P.W.9,
who is the neighbour of P.Ws.4 to 6, has stated that he only caught hold
of the accused and handed over the same to the police. However,
according to P.W.7, Village Administrative Officer of Midapatti Village,
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Crl.A.(MD) No.554 of 2018
the accused appeared before him at about 12.00 p.m., on 12.04.2009 and
has given extra judicial confession. Based on that, he produced the
accused before P.W.16. So far as recovery of head is concerned, there is
no clear evidence, at what time the head was recovered from the house of
P.Ws.4 to 6. Admittedly, the head was not recovered under any mahazar.
It was also admitted by P.W.18, Investigating Officer, that he did not
know, who had recovered the head from the house of P.Ws.4 to 6 and
how the head was taken to the original scene of occurrence.
14. Considering these all those circumstances, the trial Court has
come to the conclusion that the prosecution has failed to prove the charge
beyond any reasonable doubt and acquitted the accused.
15. Law is well settled, that, in the appeal against acquittal, the
order of acquittal should not be lightly interfered with by the appellate
Court unless there is omission or perverse in the finding of the trial
Court. The appellate Court should not ordinarily set aside the order of
acquittal in a case where two views are possible, though the view of the
appellate Court may be the more probable one. It is also settled law that
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Crl.A.(MD) No.554 of 2018
in a case of appeal against acquittal, there is a double presumption in
favour of the accused. The presumption of innocence was further
confirmed by the order of acquittal. The Honourable Supreme Court in
Babu vs. State of Kerala reported in (2010) 3 SCC (Cri) 1179, has held
as follows:
“12. This court time and again has laid down
the guidelines for the High Court to interfere with
the judgment and order of acquittal passed by the
trial Court. The appellate court should not
ordinarily set aside a judgment of acquittal in a
case where two views are possible, though the view
of the appellate court may be the more probable
one. While dealing with a judgment of acquittal, the
appellate court has to consider the entire evidence
on record, so as to arrive at a finding as to whether
the views of the trial Court were perverse or
otherwise unsustainable. The appellate court is
entitled to consider whether in arriving at a finding
of fact, the trial Court had failed to take into
consideration admissible evidence and/or had
taken into consideration the evidence brought on
record contrary to law. Similarly, wrong placing of
burden of proof may also be a subject matter of
scrutiny by the appellate court. (Vide Balak Ram v.
State of U.P. (1975) 3 SCC 219: 1974 SCC (cri)
837; Shambhoo Missir & Anr. v. State of BiharAIR 1991
SC 315;Shailendra Pratap & Anr. v. State of U.P.
(2003) 1 SCC 761;Narendra Singh v. State of M.P.
(2004) 10 SCC 699;Budh Singh & Ors. v. State of
U.P. (2006) 9 SCC 731; State of U.P. v. Ramveer
Singh (2007) 13 SCC 1025; S. Rama Krishna v. S.
Rami Reddy AIR 2008 SC 2066; Arulvelu & Anr.
Vs. State (2009) 10 SCC 206;Perla Somasekhara
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Crl.A.(MD) No.554 of 2018
Reddy & Ors. v. State of A.P. (2009) 16 SCC 98;
and Ram Singh alias Chhaju v. State of Himachal
Pradesh (2010) 2 SCC 445).
13.In Sheo Swarup and Ors. v. King Emperor
AIR 1934 PC 227, the Privy Council observed as
under:
"...the High Court should and will always give
proper weight and consideration to such matters as
(1) the views of the trial Judge as to the credibility
of the witnesses, (2) the presumption of innocence
in favour of the accused, a presumption certainly
not weakened by the fact that he has been acquitted
at his trial, (3) the right of the accused to the
benefit of any doubt, and (4) the slowness of an
appellate court in disturbing a finding of fact
arrived at by a Judge who had the advantage of
seeing the witnesses...."
14. The aforesaid principle of law has
consistently been followed by this Court.
(See:Tulsiram Kanu v. The State (AIR 1954 SC 1);
Balbir Singh v. State of Punjab(AIR 1957 SC
216);M.G. Agarwal v. State of Maharashtra(AIR
1963 SC 200); Khedu Mohton & Ors. v. State of
Bihar(1972 2 SCC 450); Sambasivan and Ors. v.
State of Kerala (1998) 5 SCC 412; Bhagwan Singh
and Ors. v. State of M.P. (2002) 4 SCC 85; and
State of Goa v. Sanjay Thakran and Anr. (2007) 3
SCC 755).
15.In Chandrappa v. State of
Karnataka(2007) 4 SCC 415, this Court reiterated
the legal position as under:
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"(1) An appellate court has full power to review, re-
appreciate and reconsider the evidence upon which
the order of acquittal is founded.
(2)The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of
such power and an appellate court on the evidence
before it may reach its own conclusion, both on
questions of fact and of law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient
grounds", "very strong circumstances", "distorted
conclusions", "glaring mistakes", etc. are not
intended to curtail extensive powers ofan appellate
court in an appeal against acquittal. Such
phraseologies are more in the nature of "flourishes
of language" to emphasise the reluctance of an
appellate court to interfere with acquittal than to
curtail the power of the court to review the
evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind
that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under
the fundamental principle of criminal
jurisprudence that every person shall be presumed
to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused
having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and
strengthened by the trial court.
(5) If two reasonable conclusions are possible on
the basis of the evidence on record, the appellate
court should not disturb the finding of acquittal
recorded by the trial court."
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16.In Ghurey Lal v. State of Uttar Pradesh
(2008) 10 SCC 450, this Court re-iterated the said
view, observing that the appellate court in dealing
with the cases in which the trial courts have
acquitted the accused, should bear in mind that the
trial court's acquittal bolsters the presumption that
he is innocent. The appellate court must give due
weight and consideration to the decision of the trial
court as the trial court had the distinct advantage
of watching the demeanour of the witnesses, and
was in a better position to evaluate the credibility
of the witnesses.
17.In State of Rajasthan v. Naresh @ Ram
Naresh(2009) 9 SCC 368, the Court again
examined the earlier judgments of this Court and
laid down that an "order of acquittal should not be
lightly interfered with even if the court believes that
there is some evidence pointing out the finger
towards the accused."
18.In State of Uttar Pradesh v. Banne alias
Baijnath & Ors. (2009) 4 SCC 271, this Court gave
certain illustrative circumstances in which the
Court would be justified in interfering with a
judgment of acquittal by the High Court. The
circumstances includes:
i) The High Court's decision is based on
totally erroneous view of law by ignoring the
settled legal position;
ii) The High Court's conclusions are
contrary to evidence and documents on record;
iii) The entire approach of the High Court in
dealing with the evidence was patently illegal
leading to grave miscarriage of justice;
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iv) The High Court's judgment is manifestly
unjust and unreasonable based on erroneous law
and facts on the record of the case;
v) This Court must always give proper weight
and consideration to the findings of the High
Court;
vi) This Court would be extremely reluctant
in interfering with a case when both the Sessions
Court and the High Court have recorded an order
of acquittal.
A similar view has been reiterated by this Court in
Dhanapal v. State by Public Prosecutor, Madras
(2009) 10 SCC 401.
19. Thus, the law on the issue can be
summarised to the effect that in exceptional cases
where there are compelling circumstances, and the
judgment under appeal is found to be perverse, the
appellate court can interfere with the order of
acquittal. The appellate court should bear in mind
the presumption of innocence of the accused and
further that the trial Court's acquittal bolsters the
presumption of his innocence. Interference in a
routine manner where the other view is possible
should be avoided, unless there are good reasons
for interference.”
16. Keeping the above principle in mind, we have considered all
those materials and circumstances and find no irregularity or illegality in
the order of acquittal passed by the trial Court.
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Crl.A.(MD) No.554 of 2018
17. In the result, we find no merit in this appeal and the same
deserves to be dismissed. Accordingly, this Criminal Appeal is dismissed
and the acquittal of the accused is hereby confirmed.
18. Before parting with the case, we record our appreciation for the
excellent assistance rendered by Mr.Mahaboob Athiff, learned counsel
for the appellant and Mr.Jerin Mathew, learned counsel for the second
respondent, who have been appointed as legal aid counsels. The Legal
Services Authority attached to this Bench, shall pay necessary fees to the
learned counsels.
(V.B.D.J.,) (S.A.I.,J)
20.10.2021
Internet: yes/no
Index : yes/no
pm
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Crl.A.(MD) No.554 of 2018
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy,
shall be the responsibility of the advocate/litigant
concerned.
To
1.The Principal Sessions Judge,
Dindigul District,
Dindigul,
2.The Inspector of Police,
Saminathapuram Police Station,
Dindigul District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Copy to
The Section Officer,
Criminal Records,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A.(MD) No.554 of 2018
V.BHARATHIDASAN, J.
and
S.ANANTHI, J.
pm/
Judgment in
Criminal Appeal No.(MD) No.554 of 2018
20.10.2021
https://www.mhc.tn.gov.in/judis
