IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.04.2008 CORAM THE HONOURABLE MR.JUSTICE T. SUDANTHIRAM Crl.R.C.No.344 of 2006 Mrs.Thippey Baby Petitioner Versus 1. State by the Inspector of Police Ketti Police Station The Nilgiris. 2.Mr.C.K.N.Ramesh 3.C.K.N.Mahesh 4.C.K.N.Babu 5.Mr.N.Krishnan Respondents Revision petition filed against the order of acquittal passed by the Sessions Court, Udhagamandalam, The Nilgiris, made in S.C.No.45 of 2005, on 11.11.2005, acquitting respondents 2 to 5 under Section 307, 324 r/w 34 of the Indian Penal Code. For Petitioner : Mr.Lenin for M/s. Lenin and Bhagya For Respondents : Mr.R.Shanmugha Sundaram Public Prosecutor for R1. M/s.M.V.Purushothaman for R2 to R5. JUDGMENT The petitioner who was examined as P.W.1 in S.C.No.45 of 2005, on the file of the Sessions Court, Udhagamandalam has preferred this revision against the Judgment passed by the learned Sessions Judge, acquitting the accused 1 to 4 from the charges under Section 307, 324 r/w 34 of the Indian Penal Code. 2. The accused 1 to 3 are brothers. The fourth accused who is friend of accused 1 to 3 is working as a driver. There was a land https://hcservices.ecourts.gov.in/hcservices/ dispute between the accused 1 to 3 and P.W.1 Thippey Baby with regard to a land measuring about 4 acres and 30 cents and a Civil Suit is also pending. On 16.10.2003 at 1.30p.m.,, when P.W.1 went to the radish field, the accused 1 to 3 came there and the first accused tried to attack P.W.1 on her head with the wooden log and as she warded of with the hands, the attack fell on her left hand and also on her cheek. Then she lost her teeth and the second accused beat P.W.1 on her right elbow with pick axe(bfhj;J). The third and fourth accused kicked her with legs on her hips and thigh. As P.W.2, P.W.4 and others rushed to the scene, the accused dropping M.O.1 and M.O.2 ran away from the scene. P.W.2 and P.W.4 brought a jeep and took P.W.1 to the Government Hospital and P.W.3 Doctor examined her and noticed the following injuries: "i) Jaw Bone Fracture? ii) Swelling of upper and lower lip iii) Contusion on left upper arms 5 cms dia iv) Laceration 2 cms dia circular Rt.elbow. Ortho Surgeons: Opinion = Fracture Lt Mumerus} Dental Surgeon's opinion:Fracture Mandible(Lt)} Grievous Fracture Zygoma } Fracture Zygo arch(Rt)" } The Doctor issued Ex.P.2, accident register and also Ex.P.3 wound certificate. The Doctor also opined that the injuries 1 to 4 are grievous injuries. P.W.7 Sub Inspector of Police on receiving information from the Government Hospital went to the F.S.Ward ans seen P.W.1 who was admitted as inpatient and received the complaint Ex.P.1 and registered a case in Crime No.152 of 2003 at 9.30p.m. for offence punishable under Section 323, 324, 325 and 307 IPC. Ex.P.8 is the FIR. 3. P.W.8, Inspector of Police took up investigation and went to the hospital and recorded the statement of P.W.1. He arrested the accused 3 and 4 on 17.10.2003 at 6.30a.m., near Kerada bus stand. P.W.8 went to the scene of occurrence and prepared the observation mahazar and rough sketch and recovered M.Os.1 to 4, at the scene of occurrence under Ex.P.11. On completing the investigation a final report was filed on 24.11.2003. 4. The learned counsel for the petitioner submitted that P.W.1 is a victim aged 65 years at the time of occurrence had given evidence about she being attacked by the accused. The occurrence also being witnessed by her son P.W.2 who was at the distance working in the upper portion of the field and also was witnessed by P.W.4 whose house is next to the field. The medical evidence shows that P.W.1 sustained injury due to violence and also sustained fracture and was also admitted in the hospital as inpatient. The learned counsel for the petitioner further submitted that the evidence of P.W.1 injured witness being corroborated by medical evidence and other witnesses, has not been relied on by the learned https://hcservices.ecourts.gov.in/hcservices/ Sessions Judge for some erroneous reasons. The appreciation of the evidence of P.W.1 and other witnesses has not been done by the learned Sessions Judge with the Judicial approach. Ultimately the evidence of P.W.1 has been entirely ignored and it had resulted in grave miscarriage of justice to the petitioner herein. 5. The learned Senior Counsel Mr.Shanmughasundaram for the respondents 2 to 5/accused 1 to 4 submitted that reappraisal of evidence is not possible in a case of revision against acquittal. As there was a civil dispute between the parties, there was a possibility of witnesses to depose falsely against the accused. The learned Senior Counsel further submitted that the trial Court had acquitted the accused, since the medical evidence has not been strengthened by marking X-rays and examining the radiologists. According to the trial Court, there are different versions with regard to the place of occurrence and P.W.4 is an interested witness. 6. The learned counsel also relied on the decision reported in AIR 1962 SC 1788 (Chinnaswamy v. State of Andra Pradesh and another), viewed that only in case of exceptional nature, the High Court can justifiably interfere with an order of acquittal and such an exceptional circumstance is not available in this case. As the Sessions Judge had carefully analysed all the evidence, it cannot be said in this case that the material evidence has been overlooked by the trial Court. 7. The learned Government Advocate(Criminal side) was also heard. The learned Government Advocate submitted that the evidence of an injured witness can be accepted even without the corroboration of any other witness and in this case, the evidence of P.W.1 is also supported by P.W.2, her son and also by evidence of P.W.4, independent witness. The injuries sustained by P.W.1 are also established by medical evidence, by way of examining P.W.3 Doctor and marking the accident register and wound certificate Exs.P.2 and P.3 respectively. 8. This Court considered the submissions made by all parties and perused the Judgment rendered by trial court and also the other records. The main reason given by the trial Court for acquittal of the accused are as follows: (i) Though P.W.3 Doctor had opined that the injuries sustained by P.W.1 is based on the opinion given by the Dentist that there was a fracture on the left jaw and there is fracture on the left cheek bone psychoma, but X-ray not marked and Doctor who gave opinion about fracture is not examined. Therefore the grievous nature of injury is not established. (ii) In Ex.P.2 it is mentioned by P.W.3 Doctor as informed by P.W.1, the names of A.1 to A.3 as assailants and not the name of the fourth accused . The inclusion of the fourth accused affects the prosecution case. https://hcservices.ecourts.gov.in/hcservices/ (iii) P.W.2 being son of P.W.1 is not speaking the truth. (iv) P.W.4 had taken the land of P.W.1 for lease and also filed a case before the Court against the mother of the accused 1 to 3 and the first accused and therefore he is not an independant witness and he is only the supporting witness for P.W.1. (v) There is no proof to show that the copy of FIR being served to P.W.1. (vi) According to P.W.1, the place of occurrence was only radish filed and according to P.W.2 it was on the pathway and according to the Investigating Officer, it was only the turnip field. 9. It appears from the evidence of P.W.1 a lady who is aged about 65 years at the time of occurrence had sustained injuries due to violence. Though according to the suggestion put by the defence, that P.W.1 had fallen from the jeep and sustained injuries, P.W.3 Doctor had categorically stated that the injuries sustained by P.W.1 were not possible by fall and it is possible only by assault. If that is so, the question only remains who is the assailant. The occurrence had taken place only in the date time, ie., at 1.30p.m., that too in the field. Admittedly there has been a land dispute between P.W.1 and the accused party. While so, when P.W.1 injured witness says that she was assaulted by the accused, there must be strong reasons to reject her evidence. The evidence of injured witness alone can be relied on without any corroboration from other witnesses, if it is corroborated by medical evidence. Further whether P.W.4 can be considered as an independent witness or not, his house being nearer to the scene of occurrence, his presence at the scene of occurrence is natural. 10. The rejection of the evidence of P.W.1 by the trial court does not appear to be on acceptable reasons. If that be the case, it is to be considered as the material evidence of P.W.1 and the medical evidence has been overlooked. Whether the injury is grievous in nature or not is to be considered only at the stage after deciding whether any assault was made on the victim or any act of violence has been done by the accused. The approach of the learned Judge in his Judgment as a first point whether it is established, the injury caused is of grievous in nature or not, is wrong. 11. In the decision of the Honourable Supreme Court reported in AIR 1981 SC 1415 (Ayodhya Dube and others v. Ram Sumer Singh), it has been observed as follows: "........A perusal of the judgments of the High Court and the Sessions Judge shows that the High Court was fully alive to the scope and extent of its revisional powers when dealing with orders of acquittal. https://hcservices.ecourts.gov.in/hcservices/ The High Court referred to the judgment of this Court in Chinnswamy v. State of Andhra Pradesh reported in AIR 1962 SC 1788, after referring to the decision of this Court the High Court said, "In the instant case, we find that this is a case of non-application of mind on the part of the court below. The probative value of the First Information Report has been entirely ignored. The individual testimony of the eye-witness has not been discussed and their reliable testmony has been ignored, from which it follows that material evidence has not been considered and it has been overlooked. The entire judgment is full of inconsistencies. The Court below has misquoted the evidence at some places, for example, while dealing with the copy of statement (Ex.Ka-18). The judgment consists of faulty reasoning and lack of judicial approach. Accepted canons for appreciating evidence have been thrown to the wind. The conclusions on the question of motive are against the weight of overwhelming evidence in the case. In our opinion, the view expressed by the Court below has resulted in grave miscarriage of justice so far as the opposite parties Uma Shanker, Girija Shanker, Gauri Shanker, Achhaibar, Jhabbar, Bansu, Ram Katal, Ayodhya Dube and Vindhyachal are concerned. The above, in our opinion, are exceptional circumstances which compel us to order retrial of the aforesaid opposite parties." In our view, the High Court has given adequate reasons for interfering with the acquittal and ordering a retrial of the appellants. We may add that the High Court also expressed the view that the instances mentioned by this Court in Chinnswamy v. State of Andhra Pradesh as justifying interference with orders of acquittal in the exercise of revisional powers were illustrative and not exhaustive. We agree with the view expressed by the High Court and we only wish to say that the Criminal Justice System does not admit of 'pigeon-holding'. Life and the Law do not fall neatly into slots. When a Court starts laying down rules enumerated (1), (2), (3), (4) or (a), (b),(c),(d), it is arranging for itself traps and pitfalls. Categories, classifications and compartments, which statute does not mention, all tend to make law 'less flexible, less sensible and less just.' 12. On the basis of the ratio laid down by the Apex Court, this court feels that in this case, the Judgment of the trial Court consists of invalid reasonings and lack of judicial approach and the accepted canons for appreciating evidence have been thrown to the wind which caused the grave miscarriage of justice to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 13. P.W.1 had stated to the Doctor that she was assaulted by Ramesh, Babu and Mahesh A.1 to A.3 and she has not mentioned the name of the fourth accused. Whether it is proper for Doctor to mention the name of assailants in the accident registers though the names of A.1 to A.3 mentioned can not taken as basis for conviction on them, the non-mentioning of the name of fourth accused by P.W.1 can be taken in fovour of the fourth accused. Further the allegation against the fourth accused is that he had kicked her only later. The overt act attributed to the fourth accused is not corroborated by medical evidence. Though some overt act is attributed to the third accused, his presence at the scene of occurrence is established by evidence of P.Ws.1,2 and 4. Therefore, giving the benefit of doubt, the acquittal of the fourth accused alone is proper. Therefore, the acquittal of the fourth accused/fifth respondent alone is confirmed by this Court. The acquittal of the accused 1 to 3/respondents 2 to 4 is set aside and the matter is remanded back for retrial. 14. This Court now wants to make it clear by ordering this retrial. that this Court is not directing for a de novo trial. The trial Judge has to decide the case on the basis of the evidence already on record and also may record additional evidence as required by parties. 15. The Honourable Supreme Court has held in the decision reported in 2005 SCC (Crl.)276 ( Satyajit Banerjee and Others v. State of West Bengal and Others) as follows: "25. Since strong reliance has been placed on Best Bakery Case (Gujarat riots case) it is necessary to record a note of caution. That was an extraordinary case in which this Court was convinced that the entire prosecution machinery was trying to shield the accused i.e., the rioters. It was also found that the entire trial was a farce. The witnesses were terrified and intimidated to keep them away from the court. It is in the aforesaid extraordinary circumstances that the Court not only directed a de novo trial of the whole case but made further directions for appointment of the new prosecutor with due consultation of the victims. Retrial was directed to be held out of the State of Gujarat. 26. The law laid down in Best bakery case in the aforesaid extraordinary circumstances, cannot be applied to all cases against the established principles of criminal jurisprudence. Direction for retrial should not be made in all or every case where acquittal of accused is for want of adequate or reliable evidence. In Best Bakery case the first trial was found to be a farce and is described as "mock trial". Therefore, the direction for retrial was in fact, for a https://hcservices.ecourts.gov.in/hcservices/ real trial. Such extraordinary situation alone can justify the directions as made by this Court in Best Bakery case. 27. So far as the position of law is concerned we are very clear that even if a retrial is directed in exercise of revisional powers by the High Court, the evidence already recorded at the initial trial cannot be erased or wiped out from the record of the case. The trial Judge has to decide the case on the basis of the evidence already on record and the additional evidence which would be recorded on retrial." 16. This Court now directs the trial Judge for retrial in respect of accused 1 to 3 and shall take a decision on the basis of the entire evidence on record and strictly in accordance with law without in any manner being influenced or inhibited by anything said on the evidence in this Judgment by this Court. 17.The revision petition is allowed except in respect of fifth respondent. Ksr Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To 1. The Sessions Judge Sessions Court, Uthagamandalam The Nilgiris. 2. The Public Prosecutor, Chennai. 1 cc to M/s.N.Chandrasekaran, Advocate, SR.20001 sji (co) dv/21.4. Crl.R.C.No.344 of 2006 https://hcservices.ecourts.gov.in/hcservices/