BAIL SLIP The Petitioners 1 to 3 (Appellants 1 to 3/Accused 1 to 3) were released on bail in and by the order of this court dated.23.11.2006 made in Crl.M.P.No.1 of 2006 in Crl.R.C.No.1342 of 2006 on the file of the High Court, Madras. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:25.6.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.1342 of 2006 1.Sivanesan 2.Arulraj 3.Yuvaraj 4.Vijayakumar 5.Murugan ... Petitioners /Appellants/ Accused 1 to 5 vs. The State: The Inspector of Police, B-7, Police Station(L & O) Coimbatore City ... Respondent/Respondent/ (Crime No.627/2003) Complainant. Petition filed under Section 397 r/w 401 of Cr.P.C. seeking to set aside the order dated 15.11.2006 passed by the Additional District and Sessions Judge, Fast Track Court No.2, Coimbatore, in C.A.No.73 of 2006, modifying the conviction and sentence imposed by the Judicial Magistrate No.VI, Coimbatore, by his judgement dated 17.1.2006 passed in C.C.No.620 of 2003. For Petitioners : Mr.M.Chandrasekaran For Respondent : Mr.Hassan Mohammed Zinna,A.P.P ORDER Challenging and impugning the order order dated 15.11.2006 passed by the Additional District and Sessions Judge, Fast Track Court No.2, Coimbatore, in C.A.No.73 of 2006, modifying the conviction and sentence imposed by the Judicial Magistrate No.VI, Coimbatore, by his judgement dated 17.1.2006 passed in C.C.No.620 of 2003, this revision case is focussed. 2. 'A' resume of facts, which are absolutely necessary and germane for the disposal of this revision would run thus:- (a) The police laid the police report in terms of Section173 of https://hcservices.ecourts.gov.in/hcservices/ Cr.P.C. as against the revision petitioners/accused for the offences under Sections 147, 148, 427, 452, 506(ii) IPC, 323 r/w.149 and 326 IPC. Since they pleaded not guilty, the Magistrate framed the necessary charges and conducted the trial. (b) During trial, on the prosecution side, 14 witnesses were examined as P.W.1 to P.W.14 and Ex.P1 to P10 were marked and M.O.1 to M.O.3 were also marked. On the accused side, no oral or documentary evidence was adduced. (c) Ultimately, the Judicial Magistrate No.6, Coimbatore, convicted the accused and imposed the sentence as under: Case No. Offence Punishment imposed C.C.No.620 of 2003 147, 148, 427, 452, 506(ii) IPC-accused 1 to 5 One year simple imprisonment for each of the offence and fine of Rs.100/-each for each of the offences, in-default, three weeks simple imprisonment 323 r/w.149 and 326 -accused 1 to 3 One year Simple imprisonment for each of the offences and fine of Rs.400/-, in default, one week R.I. 323, 326 r/w.149- accused 4 and 5 One year Simple imprisonment for each of the offences and Fine of Rs.400/- for each accused (d) Being aggrieved by and dis-satisfied with the said conviction recorded and the sentence imposed by the Magistrate, appeal was filed before the Additional District and Sessions Court, Coimbatore, which Court acquitted the accused of various offences and recorded convictions and sentences as under:- Case No. Offence Punishment imposed C.A.No.73 of 2006 452 and 324 IPC Six months simple imprisonment to each of the accused A1 to A3 147, 148, 427, 452, 506 (ii), 323 r/w.149 and 324 IPC Fine of Rs.100/-as against A4 and A5 323 IPC Fine of Rs.1,400/- as against each of A4 and A5 3. Challenging and impugning the order of the Sessions Court, the appellants 1 to 5 preferred this revision on the following grounds among others:- Both the Courts below failed to appreciate the evidence of the witnesses in proper perspective. The evidence of P.W.1 was not corroborated by other witnesses and both the Courts below failed to https://hcservices.ecourts.gov.in/hcservices/ take into consideration the contradictions, which emerged in the deposition of witnesses. The M.O.Nos.1 and 2 were not seized by the police in accordance with law and those materials objects were not shown to the Doctor to get medical opinion from the Doctor as to whether the injuries complained of by the injured could have been caused by such weapons. The blood stained clothes were not produced before the Court. P.W.1, had previous enmity with the accused and that was not considered by both the Courts below. No independent witness to the occurrence was examined. Accordingly, the revision petitioners prayed for setting aside the convictions recorded and the sentence imposed by both the Courts below. 4. The point for consideration is as to whether both the Courts below are perverse in recording conviction without appreciating the evidence on record, warranting interference by this Court in revision and whether the sentence imposed by the first appellate Court is in order. 5. Despite opportunities having been given, the revision petitioners have not appeared. 6. The learned Government Advocate has made his submissions. 7. A bare poring over and perusal of the records would indicate and exemplify that both the Courts below, taking into consideration the evidence of the witnesses, including the medical evidence and material objects produced, arrived at the factual finding that the accused persons participated in the crime. The gist and kernal of the case of the prosecution, as per record, would be to the effect that the accused, due to previous enmity, on 11.6.2003 at about 22.30 hours, constituted an unlawful assembly, armed with deadly weapons, and trespassed into the house of P.W.1 and caused injury to him and also damaged the articles and intimidated him with dire consequences in pursuance of main common object and accordingly, the trial Court framed the charges, after considering the evidence, recorded the conviction and imposed the sentence as above. However, the first appellate Court modified the same as set out supra. 8. The question arises as to whether the revision petitioners/accused are justified in inviting this Court to interfere with the convictions recorded by re-appreciating evidence. 9. At this juncture, my mind is reminiscent and redolent of the following decisions of the Honourable Supreme Court: (i) 2002 Supreme court cases (crl) 1448 - Bindeshwari Prasad Singh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand) and another, an excerpt from it would run thus: "13. The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to https://hcservices.ecourts.gov.in/hcservices/ interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted. 14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. (ii) 2005 Supreme Court Cases (cri) 276 – Sathyajit Banerjee and Others vs. State of W.B.and others, an excerpt from it would run thus: "22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice." 10. A bare poring over and perusal of the above judgements would exemplify and demonstrate that revisional Court should be reluctant to interfere with the findings recorded by the lower Court, unless there is perversity or non-application of law in appreciating the evidence. 11. Here, in this case, the Magistrate appreciated the evidence, which was re-appreciated by the appellate Court, which being the last Court of fact, arrived at the conclusion. Unless there is perversity or non-application of mind on the part of the Courts below in scanning and scrutinising the evidence, the question of the High Court exercising its revisional power would not arise simply because the High Court might incline to take a different view. Motive is a double edged weapon. Simply because the prosecution case is that due to previous enmity, the accused staged the attack on P.W.1 and also others by trespassing into the house of P.W.1, there is nothing to doubt or look askance at the evidence of the prosecution witnesses. 12. It is also a trite proposition of law that when an occurrence take place inside the house or in the locality, the near and dear and the relatives alone would be the witnesses. In all circumstances, one cannot expect that persons totally unconnected with the place and unconnected with the injured should be examined as https://hcservices.ecourts.gov.in/hcservices/ witnesses. Nothing has been highlighted before this Court that there is any perversity or non-consideration of any evidence placed before the Courts below, as per law. 13. On the prosecution side, as many as five witnesses, namely, P.Ws.1, 2, 3, 4 and 10 were examined and placing reliance on the deposition of those witnesses, the trial Court as well as the first appellate Court found that the occurrence took place. P.W.1-the injured, in his deposition would narrate that on the date of occurrence, at about 10.30 p.m., the accused by forming themselves into an unlawful assembly and barged into his home by breaking open the door of his house and among them A1, A2 and A3 physically lifted P.W.1; whereupon, A1 took a big stone and attacked him on the right side of his head and also uttered out abusive and scurrilous, vituperative and non-U words as against him, in addition to A1 having intimidated P.W.1 with dire consequences; A2, with blade caused injury on his chest; A3 also caused injury on the back and other parts of the body of P.W.1 with blade. P.W.1 also would narrate that the accused attacked his mother and father and also his brother-Naveen and caused injuries to them. The participation of each and every accused also was considered by the trial Court in detail, with reference to the deposition of the injured witnesses. 14. The trial Court clearly pointed out that deposition of P.Ws.2, 3 and 10 were in corroboration with the deposition of P.W.1 and they do hang together without any material contradiction. P.W.12 and P.W.13-the doctors also supported the prosecution case and spoke about the injuries sustained by the victims, with reference to the medical records Exs.P3, Ex.P4, Ex.P5 and Ex.P6. As such, the first appellate Court properly applied its mind and arrived at the conclusion, warranting no interference by this Court. In fact, the first appellate Court took a balanced view in exonerating the accused concerned of the offence under Section 326 IPC even though medical records show that Sumathi-one of the victims sustained fracture. 15. The question arises as to whether the sentence of six months simple imprisonment awarded as against accused 1 to 3 for the offence under Sections 452 and 324 IPC is tenable taking into consideration the nature of the injuries sustained by the victims. 16. I am inclined to reduce the simple imprisonment from six months to three months and as per Section 354(4) of Cr.P.C., I could see no special reason to reduce the sentence further from three months to any other lesser punishment. Taking into consideration the manner in which the attack was levelled as against the injured persons, I do not inclined to invoke the Probation of Offenders Act also. 17. In the result, the revision is partly allowed modifying the six months simple imprisonment imposed on each of A1 to A3 to one of three months simple imprisonment. The rest of the conviction recorded and sentence imposed shall be in tact. On receipt of the copy of the order, if not the accused concerned underwent the punishment, the Magistrate shall take steps to secure the presence of https://hcservices.ecourts.gov.in/hcservices/ the accused concerned, who should be imprisoned as per the order of the appellate Court and this Court. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar Msk To 1. The Additional District and Sessions Judge, Fast Track Court No.2, Coimbatore. 2. The Judicial Magistrate No.VI, Coimbatore 3. The Principal Sessions Judge, Coimbatore. 4. The Chief Judicial Magistrate,Coimbatore. 5. The Superintendent, Central Prison, Coimbatore. 6. The Public Prosecutor, High Court, Madras. 7. The Inspector of Police, B-7 Police Station(L & O) Coimbatore City. Crl.R.C.Nos.1342 of 2006 GR(CO) EM/13.7.09 https://hcservices.ecourts.gov.in/hcservices/