IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02..02..2010 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Crl. R.C.No.13 of 2010 M.Jayachandran ... Petitioner Vs. 1.State rep. By The Inspector of Police, Negamam Police Station, Tirupur District. 2.Veluchamy Gounder 3.Kumar 4.Subramaniya Gounder 5.Saraswathi ... Respondents Memorandum of Grounds of Criminal Revision Petition filed under Sections 397 and 401 of CPC praying to call for the records in S.C.No.102 of 2009 on the file of the learned Sessions Judge, Special Court for Bomb Blast Cases, at Coimbatore and set aside the order dated 14.10.2009 passed therein. For petitioner : Mr.V.Padmanabhan, SC for Mr.J.Pothiraj For respondent (s): Mr.N.R.Elango, APP for R1 NA for RR 2 to 5 ORDER Challenging the acquittal of the respondents 2 to 5 in S.C.No.102 of 2009 on the file of the learned Sessions Judge, Special Court for Bomb Blast Cases, Coimbatore, the petitioner, who is the de facto complainant in the said case, has come forward with this criminal revision. For the sake of convenience, the parties will be hereinafter referred to in the array of parties before the trial Court. 2. The facts of the case would be as follows:- The 4th Accused Saraswathi is the wife of the 3rd Accused. The 1st Accused and the 2nd Accused are their sons. The deceased was one Mr.Mounasamy. P.W.1 is his son. P.W.5 is the wife of P.W.1. In respect of a land dispute, there had been no love lost between the two families. On 03.09.2008 at about 11.00 a.m. the deceased and P.W.1 had gone to the disputed land. The Accused were already there. On seeing the deceased and P.W.1, all the 4 accused attacked the deceased with hands; more particularly, A1 fisted on https://hcservices.ecourts.gov.in/hcservices/ the chest of the deceased. The deceased fell down. After intimidating P.W.1, the accused fled away from the scene of occurrence. P.W.3, who belongs to the same village, was incidentally proceeding near the place of occurrence. On hearing the alarm raised, he went to the spot and witnessed the occurrence. He prevented the accused from further attacking the deceased. According to him, A1 to A4 kicked him on the stomach. Thereafter, the deceased went along with P.W.1 in a motor cycle to his house. P.W.3 also left. While at home, the deceased had lunch in the after noon. Then, he complained of chest pain. So, the petitioner (P.W.1) proceeded to fetch a Doctor from Tirupur. P.W.2 Dr.Nallathambi, a retired Government Doctor was then running a private clinic at Tirupur. At about 4.00 p.m. on the request of P.W.1 he went to the house of the deceased and examined him. On examination he found him dead. He opined that he died of heart attack. Thereafter, P.W.1 proceeded to Negamam Police Station. At about 7.30 p.m. he gave an information in writing (Ex.P.1). P.W.9, the then Inspector of Police of the said Police Station registered a case on the said complaint in Cr.No.232 of 2008 under Section 302, 323 & 506(ii) of IPC. He forwarded the original Complaint (Ex.P.1) and the FIR (Ex.P.9) to the Jurisdictional Magistrate. 3. Taking up the investigation, at 9.00 p.m. on the same day, P.W.9 proceeded to the place of occurrence and prepared Ex.P.6 Observation Mahazar and Ex.P.7 Rough Sketch. Thereafter, he held inquest on the body of the deceased between 11.00 p.m. and 2.00 p.m. during which, he examined P.W.1, P.W.3, P.W.5, P.W.6 and few more witnesses and recorded their statements. Ex.P.10 is the Inquest Report. Thereafter, he forwarded the body to Coimbatore Medical College Hospital for post-mortem. Then, he arranged for taking photograph of the body and examined P.W.2 Doctor Nallathambi and P.W.8 Shanmughavel and recorded their statements. He recovered the blood stained cloths produced by P.W.8 which were removed from the body of the deceased. He examined P.W.4 Dr.Edwin Joe and obtained Ex.P.2 Post Mortem Certificate. He gave an interrogatory to P.W.4 for which, P.W.4 gave a letter under Ex.P.5. On completing the investigation, he filed charge sheet on 22.11.2008 against the respondents 2 to 5. 4. Based on the above materials, the trial Court framed charges for the offences under Sections 302, 323 & 506(ii) of IPC. The accused denied all the charges. During the trial, on the side of the prosecution, 9 witnesses were examined as P.Ws.1 to 9, 11 documents were exhibited as Exs.P.1 to P.11 and 5 material objects were marked. When the accused were questioned under Section 313 of Cr.P.C. in respect of the incriminating evidences, they denied the same. On their side, they have marked only one document as Ex.D.1. 5. P.W.1 has spoken to about the alleged occurrence. P.W.3 is also an eye witness. He has also spoken to about the alleged occurrence. Thus, the entire case of the prosecution is mainly based on the evidences of P.Ws.1 & 3. Having considered their evidences coupled with the other evidences, both oral and documentary, the trial court held that the prosecution had failed https://hcservices.ecourts.gov.in/hcservices/ to prove the charges beyond reasonable doubt and therefore, acquitted the accused under all the charges. It is against the said acquittal the present revision has been filed. 6. I have heard the learned senior counsel appearing for the petitioner and the learned Additional Public Prosecutor taking notice for the 1st respondent. No notice has been ordered to the respondents 2 to 5 since the appeal is disposed of at the stage of admission itself and since this order would not be in any manner be prejudicial to the interest of the respondents 2 to 5. 7. The learned senior counsel appearing for the petitioner would submit that the evidences of P.Ws.1 to 3 along with the evidence of P.W.4 would go to clinchingly prove the charges against the accused. He would further submit that the trial Court has failed to properly appreciate their evidences and as a matter of fact, the trial Court has simply overlooked their evidences. He would, therefore, submit that this is a fit case where the revision is to be entertained. 8. The learned counsel for the petitioner would rely on number of judgements of the Hon'ble Supreme Court to impress upon this court regarding the scope of revision against the order of acquittal at the instance of a private party. 9. I have carefully gone through all the said judgements about which reference is made hereinafter. It is too well settled by the Hon'ble Supreme Court that the revisional jurisdiction of this Court can normally be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error of point of law and consequentially there has been a flagrant miscarriage of justice (vide Amarchand 1973 Crl. L.J. 577). Similar view has been expressed in Bansi Lal and others v. Laxman Singh, AIR 1986 SC 1721 wherein the Hon'ble Supreme Court has held "it is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial Court, that the High Court is empowered to set aside the order of acquittal and direct a retrial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution. The mere circumstances that a finding of fact regarded by the trial court in the opinion of the High Court be wrong, will not justify the setting aside of the order of acquittal and directing a retrial of the accused. Even in an appeal the Appellate Court would not be justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial Court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope." 10. In Hydru v. State of Kerala, (2004) 13 SCC 374, the Hon'ble Supreme Court has held as follows:- ".... It is well settled that in revision against acquittal by a private party, the powers https://hcservices.ecourts.gov.in/hcservices/ of the Revisional Court are very limited. It can interfere only if there is any procedural irregularity or material evidence has been overlooked or misread by the subordinate court." 11. Apart from the above three judgements, the learned senior counsel also relied on the following judgements of the Hon'ble Supreme Court in Harihar Chakravarty v. The State of W.B., AIR 1954 SC 266 Akalu Ahir and others v. Ramdeo Ram, AIR 1973 SC 2145 Gurshinder Singh v. Joga Singh and another, AIR 2000 SC 3418 Chaganti Kotaiah and others v. Gogineni Venkateshwara Rao and another, 1973 Cri. L.J. 978 in respect of the very same legal proposition. 12. Placing reliance on the above settled legal principle, the learned senior counsel for the petitioner would submit that the evidences of P.Ws.1 and 3 coupled with the evidence of P.W.4 have either been misread or overlooked by the trial Court. The learned senior counsel took me through the evidences of these witnesses. But, I am not persuaded by the said argument. A close reading of the evidences of P.Ws.1 & 3 would go to show that the deceased was allegedly attacked with hands at about 11.00 a.m. on 03.09.2008 and thereafter, the deceased had returned to his house. From the evidence of P.W.5, it could be seen that at about 2.30 p.m. the deceased had his lunch and shortly thereafter, he complained of pain. P.W.2 - Dr.Nallathambi was brought to the house of the deceased at about 4.00 p.m. By the time, the deceased died. P.W.2 – Doctor has deposed that in his long experience, from the symptoms found on the body of the deceased, he concluded that the deceased had died due to heart attack (sudden cardiac arrest). It was not even suggested to the said witness by the prosecution as to whether the so called attack made on the deceased by these accused would have been in any manner responsible for the said sudden cardiac arrest. In re-examination, though such attempt has been made, the Doctor ruled out the possibility of the death due to the said alleged attack made by the respondents 2 to 5. Apart from that the evidence of P.W.4 Doctor who conducted autopsy on the body of the deceased would also go to show that he was of the clear opinion that the death was due to heart disease. He had noted infarct areas on the heart muscle clearly indicating cardiac disease. He had also found blocks in the coronary vessels. Even from him, no opinion has been obtained that the alleged attack made by this accused would have been in any manner responsible for the death. Thus, the evidences of these two Doctors would go to clearly establish that the deceased died only due to sudden cardiac arrest due to natural causes. Thus, it is crystal clear that the death https://hcservices.ecourts.gov.in/hcservices/ was not a homicide. The trial Court has rightly appreciated these evidences and has come to the conclusion that it was not a case of murder. 13. The learned senior counsel appearing for the petitioner would submit that reliance may be had on Ex.P5, which is a statement given by P.W.4 Doctor for a specific question put forth by way of interrogatory by the Investigating Officer wherein the Doctor has stated that the attack allegedly made by the accused could have activated the cardiac failure. The learned senior counsel would submit that the document has been admitted without objection and reliance has also been made by the prosecution on the same. He would further point out that the trial Court also has discussed about the said document and therefore, based on the said document, it could be safely concluded that the death in this case was due to the attack made by the respondents 2 to 5. I am unable to appreciate this argument for the simple reason that the said statement is barred by Section 162 of the Code from being admitted into evidence. The said statement of the Doctor, though given in writing, the same undoubtedly falls within the ambit of Section 161 of the Code since such statement was made during the course of investigation to the Investigating Officer. As I have already stated, no evidence has been let in orally by the Doctor in respect of the said facts which are contained in the statement for being considered. At any rate, such statement of the Doctor being a statement falling within the ambit of Section 161 of the Code, the trial Court ought not to have admitted the same in the evidence. The said statement could have been used only for the purpose of contradicting the Doctor during cross examination, if any. Therefore, the said document is only to be eschewed from consideration as irrelevant, in view of the bar contained in Section 162 of the Code. Thus, the contention of the learned senior counsel in this regard is rejected. 14. In respect of the alleged attack made on the deceased by the respondents 2 to 5 also, the trial Court has found lot of inconsistencies between the evidences of P.Ws.1 and 3 and has further found that the medical evidence also does not support the case of the prosecution. Thus, on these grounds the trial Court acquitted the respondents 2 to 5 in respect of the charges under Section 323 of IPC. In respect of the charge under Section 506(ii) of IPC also, there are no convincing evidences available on record. 14. Thus, the trial court has correctly appreciated the entire evidences and has come to the conclusion that the prosecution has failed to prove the case beyond reasonable doubt. The contention of the learned senior counsel for the petitioner that the trial Court has either misread or overlooked the evidences of P.Ws.1, 3 and 4 is not at all tenable. Thus, I do not find any merit at all even to admit this revision. https://hcservices.ecourts.gov.in/hcservices/ 15. In the result, the revision fails and the same is accordingly dismissed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar kmk To 1.The Sessions Judge, Special Court for Bomb Blast Cases, Coimbatore . 2.The Inspector of Police, Negamam Police Station,Tirupur District. 3.The Public Prosecutor, High Court, Madras. 4.The Section Officer, Criminal Section, High Court, Madras. 1 cc to Mr.J.Pothi Raj, Advocate, Sr.No.6684 Order in Crl.R.C. No.13 of 2010 KG {CO} TP/15.2.2010. https://hcservices.ecourts.gov.in/hcservices/