Madras High Court
Noorjahan vs The Inspector Of Police on 29 September, 2021
Crl.A.(MD) No.259 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:29.09.2021
CORAM
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
AND
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CRL.A(MD)No.259 of 2018
Noorjahan .. Appellant/P.W.4
-vs-
1.The Inspector of Police,
Kenikarai Police Station,
Ramanthapuram District.
(In Crime No.462 of 2015)
.. 1st respondent/complainant
2.Mohamed Yasar Arafath
3.Jahir Hussian
4.Sahubar Sadiq
5.Ahamed Ali
6.Al Ameen ... Respondents 2 to 6/Accused Nos.1 to 5
PRAYER:Criminal Appeal filed under Section 372 of the Code of
Criminal Procedure against the judgment dated 16.04.2018 made in
S.C.No.138 of 2016 by the Additional District and Sessions Judge,
Ramanathapuram and set aside the same as illegal and convict the
accused.
1/16
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.259 of 2018
For Appellant :Mr.R.Ramanujam
for Mr.R.Gandhi
For R1 :Mr.S.Ravi,
Additional Public Prosecutor
For R2 to R6 :Mr.J.Sulthan Basha, for
M/s.Ajmal Associates
JUDGMENT
(Judgment of the Court was delivered by V.BHARATHIDASAN, J.)
There are five accused in S.C.No.138 of 2016 for the offence under
Sections 147, 148, 307, 302 r/w 149 I.P.C. The trial Court after
full-fledged trial, acquitted all the accused. Now, challenging the order
of acquittal, P.W.4, who is the sister of the deceased is before this Court
with this Criminal Appeal.
2. The case of the prosecution in brief is as follows:-
On 22.10.2015, at about 01.00 p.m., there was a quarrel between
the deceased Rajkapoor and A-1 in this case. Thereafter, A-4 & A-5 went
to the house of the deceased and searched for him and on coming to
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.259 of 2018
know about the same, the deceased and P.W.2, went to the shop of the
first accused and questioned them. At that time, there was a quarrel, and
all the five accused formed an unlawful assembly and attacked both P.W.
2 and deceased and caused the death of Rajkapoor and in the occurrence
P.W.2 also got seriously injured. Based on the complaint given by the
father of P.W.2, the injured witness, a case in Crime No.462 of 2015
was registered for the offence under Sections 147, 148, 307, 302 r/w 149
I.P.C., P.W.13-the Sub-Inspector of Police working in the respondent
police station, on completion of investigation, filed the final report before
the jurisdictional Court.
5.Considering the materials, the trial Court framed charges and the
accused denied the same as false. In order to prove its case, the
prosecution examined as many as 13 witnesses, marked 35 documents
and also produced 11 material objects.
6.Out of the witnesses examined, P.W.1 is the father of
P.W.2 the injured witness and he is the author of the F.I.R. He has turned
hostile. P.W.2, the injured witness to the occurrence. He has also turned
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.259 of 2018
hostile. P.W.3 is another eyewitness to the occurrence. He was also
treated as hostile witness. P.W.4 is the sister of the deceased. She is
only a hearsay witness and her evidence has no substance. P.W.5 is the
witness for the arrest of A-2. He has also turned hostile. P.W.6 is the
witness to the Observation Mahazar and also confession of A-2. He has
also turned hostile. P.W.7 is an Officer working in the Forensic
Laboratory, Ramanathapuram, he sent the material objects to the Forensic
Laboratory, Madurai, for chemical examination.
7. P.W.8 is the Village Administrative Officer. He is the witness to
the arrest of A-1 and recovery of M.O.1-Knife, M.O.2-Iron Rod,
M.O.3 and M.O.4-Knives used by the accused. P.W.9 is the Head
Constable. He identified the body for postmortem autopsy.
P.W.10 is the Inspector of Police, who recorded the statement of
P.W.1 and based on that, registered the F.I.R in Crime No.462 of 2015.
P.W.11 is a Doctor working in Government Medical College Hospital,
Madurai and he conducted postmortem autopsy on the dead body and
given Ex.P21-Postmortem certificate and found the following injuries:
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.259 of 2018
“The following ante mortem injuries are noted on the
body:
1. Crescent Shaped Healed abrasions 9 in nos,
each measuring 2.0cmx0.5cm to 3cm x 0.5cm
respectively noted on vertex.
2. Healed sutured wound 5cm x 1cm x bone deep
on mid parietal region.
3. Healed sutured wound 4cm x 1cm x bone deep
on left occipital region, (Horizontal vertical).
4. Healed sutured wound 7cm x 1cm x bone deep
on left temporal region, (Horizontal vertical).
5. Healed sutured wound 2cm x 1cmx bone deep
on left frontal region.
6. Healed abrasion 4cm x 3cm on left elbow.
7. Healed abrasion 2cm x 1cm on right knee.
8. partially healed vertically oblique sutured
wound measuring 3.0cm x 1.0cm x muscle deep noted
on upper part of back of middle of chest 8cm below
root of neck.
9. Healed incised wound 6cm x 0.5cm noted back
of right side of chest, 12cm below right shoulder blade.
On dissection of Chest:
Fracture rib of 7th with surrounding bruising
noted along the anterior axillary line on right side.
Right pleural cavity contains 50ml of fluid blood. Left
side empty.
On dissection of Scalp, Skull & dura:
Subscalpal contusion measuring 14cm x 6cm on
left fronto parieto temporal region and 13cm x 6cm on
right parieto temporo occipital region. Linear fracture
15cm in length on left temporo occipital region and
fracture 15cm in length right temporo occipital region.
Extra dura hematoma 18cm x 6cm x 1cm on mid
occipital bitemporal lobe. Diffuse subdural
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.259 of 2018
haemorrahage and subarachnoid haemorrahage
noted on both cerebral hemispheres.
Other Findings:
Peritoneal cavity – empty; Pleural cavities –
described; Pericardium – contains 15ml of straw
colour fluid; Heart – right side fluid blood, left side
empty; Coronaries – patent; Lungs – cut section –
congested and basal consolidation in patches; Larynx
& trachea – normal; Hyoid bone – intact; Stomach –
contains 100ml of brown colour fluid, nil specific
smell. mucosa – normal; Liver, Spleen & kidneys – cut
section congested; Small intestine – contains 20ml of
bile stained fluid, nil specific smell, mucosa – normal;
Bladder – empty; Brain – described.”
He was of the opinion that the deceased would appear to have died of
multiple injuries and its complications there off.
8. P.W.12 is the Inspector of Police working in the respondent
police station. He conducted the initial investigation and prepared the
observation mahazar and rough sketch and also conducted inquest on the
dead body and handed over the investigation to P.W.13.
P.W.13 the Sub-Inspector of Police working in the respondent police
station, completed the investigation and filed the final report.
9. The above incriminating materials were put to the accused under
Section 313 Cr.P.C., and the accused denied the same as false. On their
side, they have not examined any witnesses and marked any documents.
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.259 of 2018
10. Having considered the above materials, the trial Court
acquitted all the accused and now challenging the order of acquittal,
P.W.4 is before this Court with this Criminal Appeal.
11.Mr.R.Gandhi, learned counsel appearing for the appellant
would contend that even though all the eyewitnesses including the
injured witness turned hostile, the arrest of all the accused and recovery
of the weapons used in the occurrence, had been proved by the
prosecution. That apart, the motive has also been proved against the
accused. The trial Court without considering those important materials,
wrongly acquitted all the accused and the finding given by the trial Court
is perverse. Hence, the judgment of the trial Court is liable to be set
aside.
12. Mr.J.Sulthan Basha, learned counsel appearing for the
respondents 2 to 6/accused 1 to 5, would submit that all the eyewitnesses
including the injured witness, turned hostile and there is no material
available on record to implicate these accused. Considering those
circumstances, the trial Court has rightly acquitted the accused and there
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.259 of 2018
is no perversity in the judgment of the trial Court, which does not require
interference of this Court.
13. We have heard the submissions of Mr.S.Ravi, learned
Additional Public Prosecutor appearing for the State also and perused the
records carefully.
14. P.W.2 is the injured eyewitness to the occurrence and he has
turned hostile. P.W.1 father of P.W.2 is the author of the F.I.R. He has
also turned hostile. P.W.3 another eyewitness has also turned hostile.
Apart from that, there is no other evidence available on record to show
that only those accused attacked the deceased and caused his death.
Even though there is some motive for the accused against the deceased,
that itself cannot be a ground to reach a conclusion that those accused
only committed the offence. Further, conviction cannot be recorded
merely based on the arrest and recovery. The trial Court considering all
those materials, acquitted all the accused.
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.259 of 2018
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, and the appellate Court, should give proper weightage and
consideration to the views of the trial Court. The appellate Court should
not ordinarily set aside the judgment of acquittal in a case where two
views are possible, though the view of the appellate Court may be the
more probable one. 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
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.259 of 2018
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 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:
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.259 of 2018
"(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."
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.259 of 2018
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;
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.259 of 2018
iii) The entire approach of the High Court in
dealing with the evidence was patently illegal leading to
grave miscarriage of justice;
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.”
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.259 of 2018
16. Keeping the above principle in mind, we have considered the
judgment of the trial Court, and we are of the view that the findings of
the trial cannot be held as perverse and no interference is required.
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.
(V.B.D.J.,) (J.N.B.,J)
29.09.2021
Internet: yes/no
Index : yes/no
pm
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.259 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 Additional District and Sessions Judge,
Ramanathapuram.
2.The Inspector of Police,
Kenikarai Police Station,
Ramanthapuram 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.
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.259 of 2018
V.BHARATHIDASAN, J.
and
J.NISHA BANU, J.
pm
Judgment in
Criminal Appeal No.(MD) No.259 of 2018
29.09.2021
https://www.mhc.tn.gov.in/judis
