IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:16.07.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.425 of 2007 K.C.Venkatachalam ... Petitioner vs. 1. Gopal 2. Anbazhagan 3. Gunasekaran 4. Nalini 5. State by Sub Inspector of Police, Rasipuram Police Station, Crime No.232 of 2006 Namakkal District. ... Respondents Prayer: Petition filed under Section 397 and 401 of Cr.P.C. against the order of acquittal dated 15.12.2006 made in C.C.No.87 of 2006 on the file of the Judicial Magistrate Rasipuram. For Petitioner: Mr.N.Manokaran For R1 to R4 : Mr.Mohana Sundaram For R5 : Mr.R.Muniyppa Raj, G.A. (crl.side) O R D E R Animadverting upon the order dated 15.12.2006 passed by the learned Judicial Magistrate Rasipuram in C.C.No.87 of 2006, this criminal revision is focussed. 2. A 'resume' of facts which are absolutely necessary and germane for the disposal of this revision would run thus: (a) The police laid the police report in terms of Section 173 of Cr.P.C. as against the accused on the ground that on 12.02.2006 at about 11.30 a.m. (day time) when Venkatachalam was proceeding towards his garden, the accused 1 and 2 waylaid him and wrongfully restrained him due to previous enmity. Whereupon, A1 to A3 attacked him and in that process A1 used the longitudinal handle of the spade and A2 and A3 used stones to inflict injuries on the said Venkatachalam. Whereupon, on sensing the incident Venkatachalam's wife, Manimegalai came to the spot. She was also beaten by A4 and the accused A1 to A3 also intimidated those injured persons with dire consequences. (b) Inasmuch the accused pleaded not guilty, the trial was conducted. Ultimately the trial Court acquitted the accused, https://hcservices.ecourts.gov.in/hcservices/ whereupon this revision has been filed by Venkatachalam/P.W.1 on various grounds, the gist and kernel of them would run thus: 3. Even though clinching evidence was adduced on the prosecution side, nonetheless, the lower Court picking holes in the prosecution case simply doubted the veracity of the evidence of P.Ws.1 and 2 and. P.Ws.5 and 6 were won over by the accused and they did not support the prosecution case. Accordingly, the revision petitioner prayed for setting aside the judgment of the lower Court and for passing suitable orders. 4. Heard the learned counsel for the revision petitioner and the learned Government Advocate (crl.side). Despite printing the names of the respondents/accused, none appeared. 5. The learned counsel for the revision petitioner inviting the attention of this Court to various portions of the evidence would develop and advance his argument to the effect that P.Ws.1 and 2, the husband and wife being the injured persons copiously and coherently, palpably and descriptively, narrated as to what happened and how they were beaten and they also spoke about the participation of the accused persons. But the lower Court simply acquitted all the accused. The learned Government Advocate (crl.side) would submit that the State has not preferred any appeal as against the acquittal. 6. No doubt, a bare perusal of the deposition of P.W.1 would evince and evidence that he had given a go-bye in his deposition relating to the acquisition levelled by him as against Anbazhagan/A2 in the FIR, where he implicated Anbazhagan by narrating as though Anbazhagan with a stone went on inflicting injuries on him. P.W.1 having a volte face and turning turtle would depose before Court as though Anbazhagan had no role to play in attacking him. This was taken serious note of by the trial Court and looked askance at the evidence of P.W.1 and the prosecution case in toto. 7. I am of the considered opinion that the learned Magistrate took a strict view of the matter and analysed the evidence without having any regard for natural variations in the evidence of the witnesses. No doubt, it appears that P.W.1 deliberately wanted to give a clean chit to Anbazhagan, otherwise he would not have spoken in that manner before the Court quite antithetical to what he narrated in the FIR as against Anbazhagan. Before the Doctor, P.W.1 soon after the occurrence furnished the history which was recorded by the Doctor to the effect that two known persons and three unknown persons staged the attack on him. Gopal/A1 and Anbazhagan/A2 are obviously known to him. However there are also other known persons like Gunasekaran/A3. It is not known as to why before the Doctor he should say two known persons and three unknown persons attacked him, when in the remaining three in the group, he knew Gunasekaran also. But one thing is clear that some incident occurred and there can no doubt about it. 8. The core question arises as to whether after exonerating https://hcservices.ecourts.gov.in/hcservices/ Anbazhagan, the criminal liability could be fixed on others. No doubt, there is some evidence to show that Gopal attacked P.W.1 and caused injuries. Along with Gopal, some other persons also attacked the injured. But the lower Court felt that it would not be safe to record conviction based on such shaking evidence. 9. At this juncture, my mind is redolent and reminiscent of the following decisions of the Hon'ble Apex Court: (i) 2002(6) SCC 650- Bindeshwari Prasad Singh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand) and another; an excerpt from it would run thus: "13. The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted. 14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. (ii) 2005 Supreme Court Cases (cri) 276 – Sathyajit Banerjee and Others vs. State of W.B.and others, an excerpt from it would run thus: "22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice." https://hcservices.ecourts.gov.in/hcservices/ A bare perusal of the said decision would demonstrate and display that the revisional court is not expected to interfere with the finding given by both the courts below, unless there is any perversity or non-application of law on the part of both the courts below. 10. Applying those two precedents, inasmuch as the judgment of acquittal emerged and that too based on self contradictions in the evidence of P.W.1, the de facto complainant himself, I am of the considered opinion that it is better to leave the matter as such. Even applying strictly the law relating to evaluation of evidence, the matter at the most could be remitted back to the lower Court only for considering further under Section 323 IPC as against Gopal and Gunasekaran. But that would not in any way serve the purpose also after this much long lapse of time. As such, taking into account the petty nature of the offence and for which only some evidence is available and that the Magistrate exercised his discretion to acquit the accused extending the benefit of doubt, I would prefer to refrain from remitting the case back to the lower Court. Accordingly, this criminal revision petition is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gms To 1. Judicial Magistrate Rasipuram. 2. The Public Prosecutor, Madras. 3.The Sub Inspector of Police, Rasipuram Police Station, Namakkal District. +1cc to Mr.N.Manokaran, Advocate Sr 31883 RB(CO) km/18.8. Crl.R.C.No.425 of 2007 https://hcservices.ecourts.gov.in/hcservices/