IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.04.2011 CORAM THE HONOURABLE MS.JUSTICE R.MALA CRL.R.C.No. 164 of 2006 Ariyamuthu .. Petitioner/Defacto complainant ..Vs.. 1.Saroja 2.Periyasamy .. Respondents/Accused 1 and 2 3.State rep. by The Inspector of Police Kairalabath Police Station Perambalur District. Crime No.32 of 2004 .. Respondent/Complainant Prayer:- This Criminal Revision Case is filed under Sections 397 read with 401 Cr.P.C., against the order of acquittal dated 30.11.2005 in S.C.No.89 of 2004 on the file of the Sessions Court, Perambalur. For Petitioner : Mrs.Usha Raman For R1 : Mr.A.Padmanaban For R2 : served For R3 : Mr.S.Rajendiran Govt. Advocate (Crl.side) ORDER The Criminal Revision has been preferred by the revision petitioner/Defacto complainant against the acquittal order passed in S.C.No.89 of 2004 dated 30.11.2005, on the file of the Sessions Court, Perambalur. 2.The case of the prosecution is as follows: (i) P.W.1 is the father of the deceased Viswanathan and the first accused Saroja is wife of the deceased. The deceased Viswanathan and the first accused married twenty years back. Due to the lawful wedlock, they gave birth to one daughter namely Sangeetha and a son and the said Sangeetha was married. For the past 18 years, the first accused had illicit intimacy with the second accused. So the deceased Viswanathan lodged a complaint before the Kairalabath https://hcservices.ecourts.gov.in/hcservices/ Police Station. Prior to this occurrence, the accused attempted to assault the deceased Viswanathan. So the deceased Viswanathan was living with his father P.W.1. One month prior to the occurrence, the first accused gave a petition to the police and the police settled the matter amicably. (ii) On the fateful day, (i.e.) 16.03.2004, one Sankar called the deceased Viswanathan to Moongilkadu, for drying chilly. On suspicion, when P.W.1, his son-in-law Neelamegam P.W.3, Raja P.W.4 were proceeding within ½ furlong, they heard an alarming sound. When P.W.1 rushed to the spot, he found that the second accused stabbing Viswanathan on his neck and the first accused assaulted on his face repeatedly. On seeing the witnesses, the second accused escaped from the scene of occurrence. The first accused was handed over to the police by the witnesses. (iii)Immediately, P.W.1 rushed to the police station and lodged Ex.P1 complaint. P.W.12 Sub-Inspector of Police, Kairalabath Police Station, has received the complaint under Ex.P1 from P.W.1 and registered a case in Cr.No.32/2004 under Section 302 I.P.C. and the printed F.I.R. was marked as Ex.P7 and then, he despatched the same to the concerned Judicial Magistrate's Court. (iv) P.W.13 Inspector of Police took up the matter for investigation. He went to the place of occurrence and prepared an observation mahazar under Ex.P4 in the presence of P.W.7 Govindaraj and he also drew rough sketch under Ex.P8. From 17.25 p.m. to 18.50 p.m., P.W.13 conducted inquest on the body of the deceased Viswanathan and prepared Ex.P9 inquest report. Then he sent the body for autopsy along with the requisition to the Medical Officer through the Head Constable. Then, he examined the witnesses and recorded their statements. As per the statements recorded from the witnesses, P.W.13 altered the Section 302 I.P.C. into Section 120B read with 302 I.P.C. and the alteration report was marked as Ex.P10. (v) P.W.2 Dr.Balasubramanian, who received the body of the deceased and conducted autopsy and pointed out the external and internal injuries, which are as follows: External Injuries: 1. 1" X ½" X ½" stab wound left fore head; 2. 1" X ½" X ½" over left cheek; 3. 1 ½" X 1" X 1" stab injury over fore head above nose; 4. 1" X 1" X 1" stab injury over left eye-brow; 5. 1" X ½" stab injury over left post occipital; 6. Injury over nose; 7. Wound 1" X ½" post occipital over left head; 8. 1" X ½" injury over left ear; 9. 1" X ½" injury over left ear; https://hcservices.ecourts.gov.in/hcservices/ 10.1"X1/2" X ½" over nape of neck; Internal Injuries: Heart Empty, Skull – frontal bone left side fracture. The deceased died prior to 20-22 hours of autopsy. Death due to injury to brain and haemorrhage and shock. The post-mortem certificate was marked as Ex.P3. (vi)On 17.03.2004, at about 8.25 a.m., P.W.13 arrested the first accused Saroja at Thelur to Jayankondam main road, bus stop. At that time, she gave confession voluntarily, which was recorded in the presence of P.W.8 Govindaraj and one Viswanathan. Ex.P5 is the admissible portion of the first accused, in which, she stated that she is ready to hand over the hidden weapon. In pursuance of the same, she handed over M.O.1 Aruval under Ex.P6 seizure mahazar in the presence of the witnesses P.W.8 and one Viswanathan. After examining the witnesses, the first accused was remanded to judicial custody on the same day itself at 1.15 p.m. Then, P.W.13 Inspector of Police, arrested the second accused at Kallakurichi temple on the same day itself. Then, he handed over both the M.Os. to the Court under Form No.95. Since the first accused has sustained injuries, she was taken to the Government Hospital. Thereafter, he examined the other witnesses and recorded their statements and sent the accused to the judicial custody. During the investigation, P.W.6 Sankar supported the case of the prosecution , but he turned hostile. After completing investigation, P.W.13 filed the charge sheet against both the accused under Sections 120B read with 302 I.P.C. 3.The trial Court posed questioning on the accused about the incriminating materials, for which, they have stated that a false case has been foisted against them. After considering the oral and documentary evidence, the trial Court acquitted the accused from the charges levelled against them, against which, the present revision has been preferred by P.W.1, who is none other than the father of the deceased Viswanathan. 4.Challenging the order of the acquittal, the learned counsel for the revision petitioner/P.W.1 submitted that the trial Court has not properly appreciated the evidence of P.Ws.1, 3 and 4, who are the eye-witnesses. The trial Court has given more importance to the arrest of the first accused and disbelieved the arrest of the first accused and recovery under Section 27 of Indian Evidence Act. Hence she prayed for setting aside the acquittal order and remanding the matter for re-trial to the trial Court. 5. Even though the respondents 1 and 2/accused were served, no one represented on behalf of them. https://hcservices.ecourts.gov.in/hcservices/ 6.Considered the submissions made by the learned counsel for the revision petitioner and the learned Government Advocate (Crl. Side) appearing on behalf of the third respondent and materials available on record. 7.It is the duty of the prosecution, to prove the guilt of the accused under Sections 120B read with 302 I.P.C. beyond reasonable doubt. It is true that on the side of the prosecution, P.W.1 to P.W.13 were examined, Exs.P1 to P10 and M.O.1 and M.O.2 were marked. The death of the deceased is homicidal and that has been proved by P.W.2 Dr.Balasubramanian and Ex.P3 Post-mortem Certificate. The alleged eye-witnesses are P.W.1, 3 and 4. The case of the prosecution is that on the fateful day, (i.e.) 16.03.2004, one Sankar was taken the deceased Viswanathan to Moongilkadu for drying chilly and he was examined as P.W.6, but he has not supported the case of the prosecution and turned hostile. 8.The trial Court has acquitted the accused on the basis that the prosecution has not been proved the following three grounds: (i) The place of occurrence has not been proved (ii) The injuries to the first accused was not properly examined (iii) Since the deceased has sustained stab injuries, the blood stain on the earth in the place of occurrence and blood stained clothe of the deceased have not been recovered. So the benefit of the doubt has been given in favour of the accused and they were acquitted. 9.As per Sections 397 and 401 Cr.P.C., the powers of revisional Court is very limited. If the revision petitioner proved that the findings of the trial Court is perverse, the non-appreciation of any evidence or findings have suffered illegality or irregularity, then only the revisonal Court has empowered to interfere in the findings of the trial Court and order for re-trial. Here, the learned Sessions Judge has considered the evidence of P.Ws.1, 3 and 4, who are alleged to be the eye-witnesses, in their evidence, they have specifically mentioned that in the place of occurrence, there was blood stained earth, whereas P.W.13 Investigating Officer stated that there was no blood stain in the place of occurrence. So except M.O.1 Aruval, no other material objects were recovered (i.e.) blood stained clothe and blood stained earth have been seized. In such circumstances, the star witness P.W.6 Sankar has also turned hostile and there is no evidence to show that where was the occurrence was taken place. The trial Court considered this aspect and came to the conclusion that the place of occurrence has not been proved by the prosecution beyond reasonable doubt. 10.It is also pertinent to note that the deceased sustained nearly 10 injuries namely, a stab injury on forehead above nose, forehead, left cheek, left eye-brow, left post occipital, nose, post occipital over left head, left ear, nape of neck and other injuries all over the body. Furthermore, it is pertinent to note that the https://hcservices.ecourts.gov.in/hcservices/ deceased Viswanathan died instantaneously on the spot itself. In such circumstances, there must be blood stain on the earth in the place of occurrence and in the clothe worn by the deceased. But no blood stain has been found place in the place of occurrence and no blood stained clothe of the deceased was recovered. So the trial Court has correctly held that the prosecution has miserably failed to prove that in the place of occurrence, there was no blood stain on the earth and the prosecution has miserably failed to get the blood stained clothe of the deceased. Even during the investigation, inquest and after post-mortem, no convincing reason has been assigned by the prosecution that whether the blood stained clothe worn by the deceased has been recovered or not. 11.P.W.13 Investigating Officer stated that on 17.03.2004, at 8.25 a.m., he arrested the first accused at Thelur to Jayankondam main road, bus stop and she gave a confession, which was recorded in the presence of the witnesses P.W.8 Govindaraj and one Viswanathan and in the presence of the same, M.O.1 Aruval was seized. As per the evidence of P.W.1, 3 and 4, they caught the first accused red-handed in the place of occurrence and handed over to the Investigating Officer. So there is vital material contradiction between the evidence of P.W.13 Investigating Officer and the eye-witnesses P.W.1, 3 and 4 regarding the arrest of the first accused and the same has not been proved beyond reasonable doubt by the prosecution. So the above aspect clearly proved that P.W.1, 3 and 4 are not eye- witnesses. If really P.W.1, 3 and 4 are eye-witnesses, they may very well mention the correct place of occurrence and depose about the blood stained clothe in the body of the deceased. It is also true that even though P.W.13 Investigating Officer, in his evidence, stated that since the first accused Saroja sustained injuries, she was sent to the Hospital for treatment with medical memo issued by him. But during the investigation, there is no evidence to show that how she sustained injuries. As per the criminal jurisprudence, it is the duty of the prosecution to explain that how the first accused sustained injuries, but there is no evidence regarding the same. 12.The learned Sessions Judge, in paragraphs-50, 52 and 53 of his judgment, clearly discussed the above aspects in proper perspective and came to the correct conclusion that the prosecution has not proved the guilty of the accused under Sections 120B read with 302 I.P.C. beyond reasonable doubt. So the trial Court has given a benefit of doubt in favour of the accused and acquitted the same. In such circumstances, I do not find any merits in the case of the revision petitioner/P.W.1, who is not an eye-witness. The evidence of P.W.1., who is the father of the deceased, has gone to the extent of saying that the first accused caught red-handedly and handed over to investigating agency on the day itself. But, P.W.13 Investigating Officer stated that on 17.03.2004 at 8.25 a.m., he arrested the first accused at Thelur to Jayankondam main road bus https://hcservices.ecourts.gov.in/hcservices/ stop and on the basis of the voluntary confession given by the first accused in the presence of P.W.8 Govindaraj and one Viswanathan, M.O.1 aruval was seized. So there is a discrepancy in the arrest of the first accused. Furthermore, the trial Court pointed out that the prosecution has not been proved the place of occurrence, where the incident was taken place. The evidence of P.W.13 has also falsified the evidence of P.Ws.1, 3 and 4. So the trial Court considered each and every oral and documentary evidence and came to the correct conclusion. Therefore, I am of the view that the acquittal order passed by the trial Court does not warrant any interference. Hence, the revision petition deserves to be dismissed and hence it is hereby dismissed. 13.In fine, • The Criminal Revision is dismissed. • The acquittal order passed by the Sessions Court, Perambalur, is hereby confirmed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar kj To 1.The Sessions Judge, Perambalur. 2.The The Inspector of Police Kairalabath Police Station Perambalur District. 3. The Public Prosecutor, High Court, Madras. CRL.R.C.No. 164 of 2006 KSJ {CO} TP/28.4.2011. https://hcservices.ecourts.gov.in/hcservices/