IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.06.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.R.C.No.594 of 2009 B.Balraj .. Petitioner/ Defacto Complainant Vs. 1. Arun @ Arunkanth 2. Devan 3. Arumugam 4. Venkat @ Venkatraman 5. Velayuthum 6. Sudhakar 7. Kannan 8. Umakanthan 9. State rep. by its Sub-Inspector of Police, No.8 Thiruvottiyur Police Station, Chennai. Cr.No.2285 of 2001 .. Respondents/ Accused 1 to 8 and Complainant Criminal Revision Case against the judgment dated 23.1.2009 in C.C.No.46 of 2002 on the file of Judicial Magistrate, Thiruvottiyur. For petitioner : Mr.R.Ganesh Kumar For respondents: Mr.A.M.Rahamath Ali for RR1 to 8 Ms.MF.Shabana and Mr.C.Emalias Govt. Advocates (Crl. Side) for R-9 ORDER The Crl.R.C. is filed against the order acquitting the respondents 1 to 8/accused from the charges levelled against them under Sections 147, 148, 341, 323, 324 and 506 (Part 2) read with 34 IPC, by P.W.1, who is one of the injured in the alleged incident. 2. The case of the prosecution is as follows: P.W.1 and P.W.2 are the injured. On 30.9.2001 at 9.30 p.m., when P.W.1 Balraj was at his house, he was called by the Chairman https://hcservices.ecourts.gov.in/hcservices/ at Apparsamy Koil; when he went there, for Municipal Councillor's seat, Arulkanth @ Aruna demanded Councillor's seat for his wife. The Chairman has given the seat to one Anjali Devi. Immediately, the accused caught hold of P.W.1 and assaulted him with wooden log and hand. Arulkanth @ Aruna assaulted him on his head with iron rod. Others assaulted him by hand. P.W.2 Madan was assaulted by iron rod. Subsequently, they were admitted to hospital. P.W.11 Sub- Inspector of Police, received intimation from the hospital and rushed to the hospital and he recorded the complaint Ex.P-1 from P.W.1 and returned back to Police Station and registered a case in Crime No.2285 of 2001 for the offences under Sections 341, 323 and 506 (Part 2) IPC and prepared printed FIR Ex.P-7. P.W.1 was treated by P.W.8 Dr.Periasamy and at the time, P.W.1 has stated that he was assaulted by mob of people with brick and iron chair. He issued accident register Ex.P-6. P.W.9 Dr.Bakthavatchalam has taken x-ray for P.W.1 and issued Ex.P-5 opinion and he has mentioned that the injuries are simple in nature. P.W.10 Dr.Saravanan treated P.W.2 and he has stated that P.W.2 was assaulted by known persons with knife and wooden log near Thiruvotriyur Theradi Street. He has mentioned the injuries and issued Ex.P-6 opinion. P.W.11 Sub-Inspector of Police, after registering the case, went to the place of occurrence and in the presence of witnesses, he prepared observation mahazar Ex.P-2 and rough sketch Ex.P-8 in the presence of the witnesses. He examined the witnesses and recorded their statements. He arrested A5 Velayutham, A6 Sudhakar, A7 Kannan and A8 Umakanthan on 5.11.2001 and sent them for judicial custody. He recorded the statements of the other witnesses and concluded his investigation and filed the charge sheet against the accused on 9.2.2002. 3. The trial Court, after following the procedures, framed necessary charges against the accused and considering the evidence of P.Ws.1 to 11, Exs.P-1 to P-8 and M.O.1, acquitted the accused, stating that the charges levelled against them under Sections 147, 148, 341, 323, 324, 506 (Part 2) read with 34 IPC, have not been proved by the prosecution beyond reasonable doubt and benefit of doubt has been given in favour of the accused and they were set free, against which, P.W.1, one of the injured, has come forward with the present Crl.R.C. 4. Challenging the order of acquittal, learned counsel appearing for the revision petitioner submitted that the trial Court has not considered the evidence of P.Ws.1 and 2 who are the injured eye-witnesses and the trial Court ought to have convicted the accused against the charges levelled against them. He further submitted that the trial Court has not considered the evidence in proper perspective. He further stated that as per the dictum laid down by the Apex Court reported in AIR 1962 SC 1788 (K.Chinnaswamy Reddy Vs. State of A.P. and another) and 1981 (Supp) SCC 83 (Ayodhya Dube Vs. Ram Sumer Singh), the revisional Court is empowered to re- https://hcservices.ecourts.gov.in/hcservices/ assess the evidence and remit back the matter for re-trial. He prayed for allowing the Crl.R.C. and ordering for re-trial. 5. Per contra, learned counsel appearing for the respondents 1 to 8/accused submitted that the trial Court has considered all the aspects in proper perspective and it is a well written judgment and the trial Court has properly appreciated the oral evidence and came to the correct conclusion that the prosecution has miserably failed to prove the place of occurrence and there is a contradiction in the evidence of P.W.1, and when P.W.1 was treated by the Doctor, he has stated that he was assaulted by iron chair and bricks, whereas, when he appeared before Court, he deposed that he was assaulted by the accused with iron rod and wooden log. Learned counsel further submitted that the FIR is suspicious. P.W.1, the revision petitioner himself admitted that he has given a complaint and P.W.2 also stated that the complaint has been given by him and so, there is more than one complaint and the prosecution has failed to prove as to which is the first complaint and that factum has been considered by the trial Court. There is contradiction in the evidence of P.W.1 in respect of the registering the case. P.W.11 Sub-Inspector of Police registered the case. Furthermore, P.W.3 Kumaran who is the brother of P.W.1, turned hostile. Furthermore, the injured P.Ws.1 and 2 have not deposed about the injuries sustained by them in the alleged incident. This factum has been clearly discussed by the trial Court and the trial Court came to the correct conclusion that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt and benefit of doubt has been given in favour of the accused as per the criminal jurisprudence. The impugned judgment of acquittal does not warrant any interference and he prayed for dismissal of the Crl.R.C. 6. Heard the learned Government Advocates (Crl. Side) appearing for the ninth respondent. 7. Before going to the fact as to whether the revisional Court has power to re-appreciate the evidence and convict the accused, it is appropriate to quote Section 401 Cr.P.C., as follows: "Section 401: High Court's power of revision.-- (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he https://hcservices.ecourts.gov.in/hcservices/ has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly." 8. Learned counsel for the revision petitioner relied on the decision of the Supreme Court reported in AIR 1962 SC 1788 (K.Chinnaswamy Reddy Vs. State of A.P. and another), wherein, the Apex Court observed as follows: "It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice." 9. As per the said decision of the Supreme Court, the revisional jurisdiction should be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is manifest error on a point of law and consequently, there has been a flagrant miscarriage of justice. 10. The abovesaid decision reported in AIR 1962 SC 1788, has been referred to in the later decision of the Supreme Court reported in 1981 (Supp) SCC 83 (Ayodhya Dube Vs. Ram Sumer Singh), wherein, the Apex Court observed as follows: "2. 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 K.Chinnaswamy Reddy v. State of A.P. (AIR 1962 SC 1788) as justifying interference with orders of https://hcservices.ecourts.gov.in/hcservices/ 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- holing'. 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.' " 11. While perusing the above decisions of the Supreme Court, in the present case, the State has not preferred any appeal against acquittal and in such circumstances, this Court as revisional Court is empowered to re-appreciate the evidence in exceptional cases if there is any irregularity or miscarriage of justice. I am of the view that this Court has to re-consider the evidence to find out as to whether the impugned judgment of acquittal suffers from any irregularity or illegality or based on non-appreciation of evidence. 12. In this case, it is pertinent to note that P.Ws.1 to 3 are the injured eye-witnesses. P.W.3 Kumaran, even though has deposed about the incident in the chief examination, he has not supported the case of the prosecution in the cross-examination. The other alleged witnesses P.Ws.4 and 5 turned hostile. The only evidence available is P.Ws.6 and 7, who are the attestors of the seizure mahazar and observation mahazar. P.Ws.8 to 10 are Doctors. P.W.11 is the investigating officer. So, the available evidence is only P.Ws.1 and 2. 13. Now, this Court has to consider as to whether the evidence of P.Ws.1 and 2, is trustworthy and reliable. (a) From Ex.P-4 accident register of P.W.1 marked through P.W.8 Dr.Periasamy, it is seen that P.W.1 was treated by him on the same day, i.e. on 30.9.2001 at 10.20 p.m., and in Ex.P-4 accident register, it is stated that , "alleged .... assaulted by a group of known persons with br';fy; iron chair today around 9.15 p.m. at njuo/. jpUbthw;wpa{h; ....". But the complaint has been registered at 3.30 a.m. on 1.10.2001. (b) In Ex.P-1 complaint, it is stated that Arulkanth @ Aruna along with Devan, Arumugam, Venkat and others have assaulted him and caused blood injury. (c) When P.W.1 was in the witness box, in chief examination, he has deposed that the accused have assaulted him with wooden log and hand. Arulkanth @ Aruna assaulted P.W.1 on his head with iron rod and others assaulted him by hand. There are three different versions, namely in Ex.P-4 accident register, which was recorded at the earliest point of time at about https://hcservices.ecourts.gov.in/hcservices/ 10.30 p.m. on the date of occurrence, then in the complaint registered at 3.30 a.m. on the very next day, in which, he has not mentioned the weapon used and at the time of trial, P.W.1 stated that he was assaulted by iron rod, wooden log and hand. Even in the complaint, P.W.1 never stated as to whether he sustained injury. P.W.1 never whispered as to whether he sustained injuries either in his complaint or in the oral evidence. 14. As already stated, there are contradictory statements in respect of the weapon used, one in accident register copy and in Ex.P-1 complaint, P.W.1 never whispered the weapon used and different version in his oral evidence. The evidence of P.W.1 is corroborated by the evidence of P.W.2. As already stated, P.W.3 has not supported the case in cross-examination. Since there are contradictory statements in the accident register, complaint and the oral evidence before Court, the evidence of P.Ws.1 and 2 are not trustworthy and hence, not reliable. Barring P.Ws.1 and 2, P.W.3 has not supported the case of the prosecution during cross-examination. P.Ws.4 and 5 turned hostile. In such circumstances, the trial Court has proper appreciated the evidence of P.Ws.1 to 5 and came to the correct conclusion that the prosecution has miserably failed to prove that the accused formed unlawful assembly in order to commit the illegal act. Admittedly, M.O.1 iron rod has been marked, but in Ex.P-4 accident register copy, which is the earliest document, P.W.1 never whispered that he was assaulted by iron rod. 15. One more adding circumstance is that the place of occurrence has not been properly explained by the prosecution. P.W.1 in his evidence in cross-examination, fairly conceded that since they were assaulted suddenly, he was not in a position to mention as to who assaulted him with wooden log and who assaulted him with bricks. He further submitted that the Chairman candidate Kuppan was at Jayalakshmi Hall (choultry). A suggestion was posed to him that he was assaulted only at Jayalakshmi Hall (choultry) due to political rivalry, was denied by him. In such circumstances, it is the duty of the prosecution to prove as to where the occurrence has taken place. Admittedly, in Ex.P-2 observation mahazar, no blood stains have been mentioned. So, the prosecution has miserably failed to prove the scene of occurrence. Further, there is no evidence to show that the ingredients of Sections 141, 147 and 148 IPC, have been made out. 16. The trial Court appreciated the evidence of P.Ws.1 to 11 and came to the correct conclusion that the prosecution has not proved the guilt of the accused in the charges levelled against them beyond reasonable doubt. On a perusal of the materials available on record and the impugned judgment of acquittal, I do not find any irregularity or illegality in the impugned judgment of acquittal https://hcservices.ecourts.gov.in/hcservices/ passed by the trial Court and hence, it does not warrant any interference and it is hereby confirmed. 17. The Crl.R.C. deserves to be dismissed, and it is hereby dismissed as devoid of merits. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. cs To 1. The Judicial Magistrate, Thiruvottiyur. 2. Do thro the Chief Judicial Magistrate, Tiruvallur 3. Sub-Inspector of Police, No.8 Thiruvottiyur Police Station, Chennai. Cr.No.2285 of 2001 4. The Public Prosecutor, High Court, Madras. 1 cc to Mr.R. Ganeshkumar, Advocate, Sr. 34885 Crl.R.C.No.594 of 2009 NG (CO) kk 28/6 https://hcservices.ecourts.gov.in/hcservices/