Madras High Court
Annapoorani vs The State Rep. By on 29 September, 2021
Crl.A.(MD) No.90 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.90 of 2018
Annapoorani .. Appellant/P.W.1
-vs-
1.The State rep. by
The Inspector of Police,
Thiruvegamputhur Police Station,
Sivagangai District.
2.Muthukumar
3.Kabilan alias Muthukumar
4.Songai alias Thangaiah .. Respondents
Criminal Appeal filed under Section 397 of the Code of Criminal
Procedure against the judgment of the Sessions Judge, Sivagangai in
S.C.No.7 of 2006 dated 24.09.2007.
For Appellant :: Mr.P.Karthick
for Mr.T.Balakrishnan+
For Respondent :: Mr.A.Thiruvadikumar,
Additional Public Prosecutor
1/20
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Crl.A.(MD) No.90 of 2018
JUDGMENT
(Judgment of the Court was delivered by V.BHARATHIDASAN, J.)
Originally there are four accused in this case, and A-3 was
absconding, hence, the case was split up and the remaining three accused
faced the trial. The trial Court acquitted all the accused. Now,
challenging the acquittal order of the Sessions Judge, Sivagangai in
S.C.No.7 of 2006 dated 24.09.2007, the complainant/P.W.1, is before this
Court with this Criminal Appeal.
2. The case of the prosecution in brief is as follows:-
The deceased one Kalyani is the sister of the appellant/P.W.1.
All the accused are neighbouring land owners, there was a civil dispute
between the parties regarding using of common water channel. On
29.09.2004, at about 2.00 p.m., while the deceased and P.W.1, were
working in the field, the absconding accused A-3 along with A-4
destroyed the water channel.When the same was questioned by the
deceased and P.W.1, A-1 pushed P.W.1 and kicked her in the chest, A-2
pushed the deceased and kicked her in the chest, then, A-1 attacked the
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deceased with weeding hook and the deceased fell unconscious, at that
time, P.W.3 son of the deceased, P.W.4 son of P.W.1, came to the scene of
occurrence, after seeing them, all the accused ran away. Then,
P.W.1 and P.W.4, went to the police station and lodged the complaint.
3. P.W.10, the Sub-Inspector of Police working in the respondent
police station on receipt of the complaint, treated the said complaint as
C.S.R.No.91 of 2004, and sent both the deceased and P.W.1 to the
hospital for treatment. On the next day, on 30.09.2004, at about
6.30 p.m., P.W.10, registered the F.I.R(Ex.P.8) for the offence under
Sections 341, 323, 506(i) I.P.C and sent the same to the Judicial
Magistrate Court on 02.10.2004, after two days. In the mean time, both
the injured P.W.1 and the deceased were admitted in Government
Hospital, Devakottai, by P.W.2, Doctor, and issued Accident Register
Ex.P.2, for the deceased and Ex.P4 for P.W.1. Thereafter, P.W.12,
Inspector of Police, working in the respondent police station, commenced
the investigation and rushed to the hospital where he recorded the
statement of P.W.1, and also recorded the statement of Doctor(Ex.P.3);
who referred the deceased to the Government Hospital, Madurai.
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Considering the seriousness of the injury sustained by the deceased,
P.W.12, altered the F.I.R(Ex.P15), for the offence under Sections 341,
307 and 34 of I.P.C. Then, he proceeded to the scene of occurrence
where he prepared the Observation Mahazar(Ex.P9), Rough
Sketch(Ex.P10) and also recorded the statement of witnesses. On
04.10.2004, he arrested A-1 and on such arrest, he voluntarily came
forward to give a confession. Based on the admissible portion of the
confession, he recovered a Weeding Hook(M.O.1) and sent him for
remand to judicial custody. Subsequently, on 09.10.2004 at 9.30 hours,
the deceased succumbed to the injuries. Hence, he altered the F.I.R for
the offence under Sections 341, 302 and 34 I.P.C and conducted the
inquest and sent the dead body for postmortem autopsy.
4. P.W.11, a Doctor working in the Government Medical College
Hospital, Madurai, conducted the postmortem autopsy and gave a report
Ex.P.14 and found the following injuries:
“The following antemortem injuries are noted on the
body:
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Crl.A.(MD) No.90 of 2018
1.Bluish contusion noted on the right tempero
parietal are 6cm X 3 cm
On dissection: Scalp, Skull and Dura:
An oblique subscalpal contusion on the right
tempero parietal area 8 cm X 4 cm and bluish in colour.
Right temporalis muscle bruised. Fracture vault of the
skull involving the right parieto temporal bone 8 cm
obliquely. Extra dural haemotoma right temporal lobe
6 cm X 5 cm X 1 cm. Laceration of brain right temporal
lobe 6 cm X 5 cm X 0.5 cm. Diffuse sub dural and sub
arachnoid haemorrhage noted over both cerebral
hemispheres. Cerebro spinal fluid increased involum and
blood stained.
Other Findings:
Peritoneal and pleural cavities – empty.
Pericardium contains 15 ml. of straw colour fluid. heart
– right side fluid blood. left side – empty. coronary –
patent. Larynx and traches – normal. Hyoid bone –
intact. Lungs, liver, spleen and kidneys – cut section
congested. Stomach – contains 100 ml of brown colour
fluid. Nil specific smell. Mucosa – normal. Small
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intestine – contains 20 ml of bile stained fluid. Nil
Specific smell. Mucosa – normal. Bladder – empty.
Uterus – normal cut section – empty. Brain – described
in injury column.
He was of the opinion that the deceased would appear to have died of
cranio cerebral injuries. Thereafter, P.W.12 arrested all other accused and
after recording the statement of witnesses and on completion of
investigation, he filed the final report.
5.Considering the above 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 12 witnesses, marked 19 documents
and also produced one material object.
6. Out of the witnesses examined, P.W.1, is the injured eyewitness
and she is the sister of the deceased. P.W.2 is the Doctor, who admitted
both the deceased and P.W.1 at Government Hospital, Devakottai.
P.W.3, is the son of the deceased, said to be an eyewitness to the
occurrence. P.W.4 is the son of P.W.1, he also said to be an eyewitness to
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Crl.A.(MD) No.90 of 2018
the occurrence. He along with P.W.1, went to the police station and
lodged the complaint. P.W.5 is the witness to the observation mahazar,
he turned hostile.
7.P.W.6, is a Village Menial, he is the witness to the arrest of A-1
and recovery of M.O.1. P.W.7, is a Head Constable, who submitted the
F.I.R to the Judicial Magistrate Court. P.W.8 a Head Constable,
identified the dead body to the postmortem Doctor. P.W.9, is the Doctor,
who admitted the deceased in the Government Medical College Hospital,
Madurai.
8.P.W.10, the Sub-Inspector of Police working in the respondent
police station, registered the F.I.R. P.W.11, Doctor working in the
Government Medical College Hospital, Madurai, conducted the
postmortem autopsy on the dead body and gave a report. P.W.12 is
Inspector of Police, conducted investigation, on completion of
investigation, filed the final report.
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Crl.A.(MD) No.90 of 2018
9. The above incriminating materials were put to the accused under
Section 313 Cr.P.C., and the accused denied the same as false. Having
considered the materials, available on record, the trial Court acquitted all
the accused. Challenging the order of acquittal, P.W.1, is before this
Court with this Criminal Appeal.
10. The learned counsel appearing for the appellant would submit
that there are four eyewitnesses to the occurrence and all the
eyewitnesses have clearly stated that, all the four accused were present in
the scene of occurrence and A-1 pushed P.W.1 and kicked her in the chest
& A-2 pushed the deceased and kicked her in the chest and then, A-1
attacked the deceased with weeding hook and caused injuries. Even at
the time of admission, both P.W.1 and P.W.4, have clearly stated before
the Doctor that four known persons attacked them. However, pointing
out some minor inconsistency in the evidence, the trial Court has
acquitted all the accused.
11. The learned counsel for the appellant would further submit that
the medical evidence also clearly corroborate the evidence of
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Crl.A.(MD) No.90 of 2018
eyewitnesses. Further, there is no delay in filing the F.I.R., even in the
F.I.R, the name of all the four accused were found place. Without
considering those circumstances and without considering the evidence of
the eyewitnesses in proper perspective, the trial Court has given an
erroneous finding that there is material inconsistency in their evidence,
which is perverse. Hence, the judgment of the trial Court is liable to be
set aside.
12. We have considered the submissions of the learned counsel
appearing for the appellant and the learned Additional Public Prosecutor
also and perused the records carefully.
13. The trial Court acquitted all the accused on the ground that, in
the original complaint filed by P.W.1, she has not stated anything about
the over act of A-1, and there is material contradiction in the evidence of
P.W.1, and the injuries sustained by P.W.1 is also doubtful. Even in the
earlier complaint Ex.P1, there is no whisper about the presence of
P.Ws.3 and 4 in the occurrence place and therefore, their presence is also
doubtful; There is a serious doubt regarding the place of occurrence also.
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Crl.A.(MD) No.90 of 2018
That apart, all the four eyewitnesses are interested and related witnesses
and their testimonies are not reliable and trustworthy, holding so, the trial
court acquitted all the accused.
14. A Perusal of Ex.P.1, complaint said to have given by
P.W.1, it is seen that the occurrence said to have taken place on
29.09.2004 at about 2.00 p.m., for which Ex.P.1 complaint has been filed
at about 6.00 p.m., with a delay of four hours. It is the evidence of P.W.
1 that after the occurrence, both P.W.1 and the deceased went to the
house and waited there for one hour, their relatives came to their house
and there was a consultation. In Ex.P1, complaint, it is only stated that
A-1 in this case pushed P.W.1 and attacked her in the chest and A-2
pushed the deceased and kicked the deceased in the chest and there is no
mention that A-1 attacked the deceased with weeding hook. According
to P.W.11, the complaint was treated as C.S.R, but to that effect no
records were produced. Ultimately, the complaint was registered on the
next day ie., on 30.09.2004, at about 6.30 p.m., nearly after 24 hours
after the occurrence and the delay was not properly explained by the
prosecution.
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Crl.A.(MD) No.90 of 2018
15. So far as the eyewitnesses are concerned, the trial Court
considering the entire evidence, has come to a conclusion that their
evidence is not reliable and untrustworthy, also doubted the presence of
the four eyewitnesses. Even though P.W.1 is stated to be an injured in the
occurrence, from the records, it is seen that she did not sustain any injury.
That apart, in the cross-examination of P.W.1, has clearly stated that in
the occurrence, A-3 also sustained injury, and he along with his wife,
came to the police station and lodged a complaint and they were also
taken to the hospital. P.W.1 has also admitted that, A-3 has given a
complaint stating that, P.W1, her son-in-law and the deceased, attacked
A-3 and his wife, and caused injuries. That complaint has been
suppressed by the prosecution and the injuries sustained by A-3 has not
been explained. From that we can only presume that the prosecution has
suppressed the genesis of the crime. The trial Court considering all those
materials, acquitted all the accused.
16. 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
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Crl.A.(MD) No.90 of 2018
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
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
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Crl.A.(MD) No.90 of 2018
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:
"(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
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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."
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
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Crl.A.(MD) No.90 of 2018
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;
iv) The High Court's judgment is manifestly unjust
and unreasonable based on erroneous law and facts on
the record of the case;
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Crl.A.(MD) No.90 of 2018
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.”
17. 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.
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18. 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
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Crl.A.(MD) No.90 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 Sessions Judge,
Sivagangai .
2.The Inspector of Police,
Thiruvegamputhur Police Station,
Sivagangai 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.90 of 2018
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Crl.A.(MD) No.90 of 2018
V.BHARATHIDASAN, J.
and
J.NISHA BANU, J.
pm
Judgment in
Criminal Appeal No.(MD) No.90 of 2018
29.09.2021
https://www.mhc.tn.gov.in/judis/
