IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 17.11.2011 Coram THE HONOURABLE MS. JUSTICE K.B.K.VASUKI Crl.A.No.108 of 1998 Jeevendran .. Appellant Vs. 1.Ayyanna Nayanar 2.Nedunchezlian 3.Elangovan .. Respondents Prayer:- Criminal Appeal is filed under Section 378 of Criminal Procedure Code against the judgment dated 22.8.1996 made in Crl.R.C.No.3 of 1993 on the file of the Additional District Sessions Judge, Tiruvannamalai.(CC No.53 of 1989 on the file of the Court) For Appellant : Mr.A.Abdul Hameed For Respondents : Mr.K.S.Rajagopal J U D G E M E N T The defacto complainant is the appellant herein. The appeal is filed against the acquittal of the respondents/accused 1 to 3 from the charges constituting the offence punishable under Section 352 IPC. 2.According to the complainant, the respondents/accused 1 to 3 along with two others originally arrayed as A4 and A5 made an unlawful assembly in the lands belonging to the complainant at Erumbur Village, Vandavasi at 8.00 am on 23.8.1988. While A4 and A5 attempted to cut the branches of tree, the complainant attempted to prevent them from doing so. At that time, A1 pushed him down and A2 and A3 assaulted him on his chest and back side and A3 also hit him on his left leg by wooden stick and torn his shirt and thereafter A1 to A3 committed an act of theft of cut trees worth about Rs.200/-. The complainant, immediately went to Vandavasi Government Hospital and was treated for the injuries sustained by him and thereafter, lodged a police complaint at Peranamallur Police station. Since no action was taken on the same by Peranamallur Police station, the complainant came forward with the petition before the concerned Judicial Magistrate court for directing the concerned police station to register the case and to investigate the same. The complaint was, in pursuance of the order issued by the concerned Judicial magistrate court, taken up on file, but it was later referred to as mistake of fact. Thereafter, the complaint came forward https://hcservices.ecourts.gov.in/hcservices/ with the private complaint for proceeding against the accused for the offences under Sections 147, 148, 323 and 506(ii) IPC. 3.The complainant has, in order to prove the guilt of the accused examined himself and so called eye witnesses, doctor, who treated him for the injuries and Sub Inspector of Police, who received the earlier complaint and referred it as mistake of fact as PW1 to PW6 and produced the receipt for the complaint given on earlier occasion, copy of the private complaint, FIR, judgment and decree made in O.S.no.167 of 1985 along with the Advocate Commissioner's report, order made in I.A.No.31/1987 and wound certificate given by PW4 and PW6/ Doctors as Exs.P1 to P9. The accused produced the copy of the order made in I.A.No.1/1992 in O.S.No.2/1992 on the file of the Sub court, Arani as Ex.D1 on their side. 4.The trial court on the basis of the available evidence, found the accused 4 and 5 not guilty of the offences and found the accused 1 to 3 guilty of the offence only under Section 352 IPC and found them not guilty of other offences and convicted and sentenced them for the same. The defacto complainant did not prefer any appeal against the acquittal of the accused for the other offences. But A1 to A3 preferred Crl.R.C.No.3 of 1993 against the judgment of conviction for the offence under section 352 IPC. The revisional court, after having issued summons to the learned Public Prosecutor, on behalf of the respondent/private complainant and after hearing both the learned counsel for the revision petitioners/accused and the respondent/complainant through Public Prosecutor, set aside the finding of conviction of the accused passed by the trial court for the offence under section 352 IPC and acquitted them. Hence, this appeal by the complainant before this Court. 5.The learned counsel for the appellant/complainant has raised two serious issues before this court. (i) the private complainant was not served with any summon in the revision petition and he was not given any hearing and the same is in violation of the principles of natural justice and is against the legal principle laid down in the judgement reported in (1978) 1 SCC 248 (Menaka Gandhi v. Union of India and another) of the Constitution Bench of the Supreme court and (ii) the revisional court, without duly considering the evidence, based on which, the finding of conviction for the offence under Section 352 IPC is recorded, reversed the judgment of the trial court. The learned counsel for the appellant would on the grounds as referred to above, appeal to this court to remand the case for fresh disposal by giving due opportunity to the private complainant to be heard on merits by the revisional court. 6.Per contra, the learned counsel for the respondents has though not disputed the legal principle laid down by the Constitution bench of the Supreme Court about "the right of hearing to be given to the parties before passing any adverse orders", contended that no useful https://hcservices.ecourts.gov.in/hcservices/ purpose will be served for remanding the case for fresh disposal and the right of hearing can be given to the private complainant in this appeal. 7.Heard the rival submissions made on both sides. 8.It is no doubt true that the private complainant/respondent in the revision filed against the order of conviction has not been served with any summon and the revisional court thought fit to hear the learned Government Advocate (Crl. Side) on behalf of the private complainant/respondent and the same deprived the complainant/respondent to have his say in the revision against the order of conviction which resulted in reversal of the order into an order of acquittal. It is equally true that the same is contrary to well laid down principle of law of the Constitutional bench of the Supreme Court in Menaka Gandhi's case that "the right of hearing is available to all the parties and the failure to do so amounts to failure of principles of natural justice". However, the failure to give an opportunity to the respondent/private complainant would not render the entire proceedings vitiated for the simple reason that the same is made available herein to the private complainant. As the revisional court reversed the order of conviction only on the basis of available records, the complainant is permitted to challenge the correctness of the finding of acquittal recorded by the revisional court on merits on the basis of the same records and hence, this court being an appellate court against the order of acquittal, has the right to go into the evidence and to dispose of the case on merits on the basis of such evidence adduced and on the basis of the arguments advanced on merits by both the parties, as such, the irregularity committed by the revisional court is now cured. 9.On facts, the trial court acquitted all the accused except A1 to A3 for the offence under Section 352 IPC on the ground that the evidence of witnesses suffers from material contradictions, inconsistencies and discrepancies and is embellishment and improvement. The trial court has gone into that extent and disbelieved the prosecution theory for the offence under section 323 IPC for want of consistent evidence regarding number and nature of injuries sustained by the witnesses and acquitted the accused for the same. Further, the trial court having held that the evidence of prosecution side witnesses cannot be relied upon for material contradictions in respect of part of the prosecution theory, the same material contradictions would render other part of the prosecution theory to be highly doubtful and ought not to have believed the statement of witnesses to that extent. The revisional court, having found that the order of conviction for the offence under section 352 IPC is based on erroneous and mis- appreciation of evidence, rightly reversed such finding and extented the benefit of doubt to the accused and acquitted the accused from all the charges. 10.The finding of acquittal recorded by the revisional court is https://hcservices.ecourts.gov.in/hcservices/ supported by sufficient reasoning and the same would lead to an inference that the presumption of innocence of the accused is not ruled out. When two views are possible on the basis of the available evidence, the trial court ought to have adopted the view in favour of the accused. When the trial court failed to do so, the revisional court reversed the erroneous order of conviction and acquitted the accused and this Court does not find any reason to disagree with such view adopted by the revisional court and the order of acquittal of the accused passed by the revisional court deserves no interference by this Court. 11.In the result, the criminal appeal stands dismissed. Sd/- Asst.Registrar(CO) 17.3.2014 /True Copy/ Sub Asst.Registrar rk To 1.The Additional District Sessions Judge, Tiruvannamalai. 2.-do- thro' The Principal Sessions Judge, Tiruvannamalai. 3.The Judicial Magistrate No.I, Cheyyar. 4.-do- thro' The Chief Judicial Magistrate, Tiruvannamalai. JRG(CO) km/19.3. Crl.A.No.108 of 1998 https://hcservices.ecourts.gov.in/hcservices/