Tamil Selvi v. Kandhasamy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:15.6.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.11 of 2006Tamil Selvi... Petitioner/Complainant/PW2vs.1.Kandhasamy2.Vasanthamani3.Mayilathal4.The State of Tamil Nadu, rep.by Sub Inspector of Police, Potykampalayam, Kundalam Police Range, Earapuram Taluk, Erode District.... Respondents/Respondent Prayer: Petition filed under Section 397 r/w 401 of Cr.P.C. to setaside the order dated 5.10.2005, passed by the Special JudicialMagistrate, Darapuram, in C.C.No.11 of 2005.For Petitioner : Mr.S.DhanasekarFor Respondents : Mr.Hasan Md.Hasan for R4 No appearance for R1 to R3 O R D E R Animadverting upon the order dated 5.10.2005, passed by theSpecial Judicial Magistrate, Darapuram, in C.C.No.11 of 2005, thiscriminal revision case has been focussed.2. A summation and summarisation of the relevant facts, whichare absolutely necessary and germane for the disposal of thiscriminal revision case would run thus:-(a) The police laid the police report in terms of Section 173Cr.P.C. for the offence under Sections 294(b) and 323 IPC allegingthat on 3.2.2005 at about 15.00 hours, in the common path wayleading to Ponnapuram, the accused 1 to 3 due to previous enmity infurtherance of common intention uttered out unparliamentary andindecent words as against Tamilselvi, who was proceeding along thatpath way, and attacked her and caused simple injuries to her.(b) Inasmuch as the accused pleaded not guilty, the learnedMagistrate conducted the trial. On the prosecution side P.Ws 1 to 8were examined, Exs.P1 to P7 were marked and M.O.1 was marked. On thedefendants' side no oral or documentary evidence was adduced. https://hcservices.ecourts.gov.in/hcservices/ Ultimately the learned Magistrate acquitted the accused of all theoffences, with which, the accused were charged.(c) Being aggrieved by and dissatisfied with the judgement ofacquittal, the de-facto complainant, namely, Tamilselvi, filed thisrevision on the main ground that the lower Court was perverse inscreening and scrutinising the evidence and in ultimately acquittingthe accused unjustifiably.3. The learned Additional Public Prosecutor took notice onbehalf of the State. Notices to accused were served, but they didnot turn up.4. Heard both sides.5. The point for consideration is as to whether the trial Courtwas perverse in scrutinising and scanning the evidence and inacquitting the accused.6. The learned Additional Public Prosecutor drawing theattention of this Court to the medical record, namely, Ex.P4 as wellas the deposition of P.W.2-the injured witness and eye witnesses,namely, P.Ws.3, 4 and 5, including the evidence of P.W.7-the Doctor,would develop his argument that even though, those witnesses clearlyspoke in support of the prosecution, and thereby, the prosecutionproved the case beyond all reasonable doubts, the learned Magistratewith an intention to simply acquit the accused, observed as thoughthe place of occurrence was not proved and that there arecontradictions among the depositions of the prosecution witnesses.7. A bare poring over and perusal of the judgement of the lowerCourt would reveal and evince, indicate and display that atparagraph 8, the learned Magistrate simply, instead of framing thepoints for determination, as contemplated under Section 354(1)(b)Cr.P.C., in general terms formulated a point as to whether theprosecution proved its case. I am of the considered opinion that ina perfunctory manner such framing of point for determination shouldnot be made. Section 354(1)(b) Cr.P.C. is extracted here under forready reference. "354. Language and contents of judgment.- (1) . . . .. . (a) . . . .(b) Shall contain the point or points fordetermination, the decision thereon and the reasons forthe decision;"8. In accordance with the above Section, the learned Magistrateought to have framed the points for determination in the followingmanner:-1. Whether the accused in furtherance of theircommon intention on 3.2.2005 at about 15.00 hours, in thecommon path way leading to Ponnapuram, uttered out abusive https://hcservices.ecourts.gov.in/hcservices/ and scurrilous, vituperative and non-U words as againstTamilselvi-the de-facto complainant?2. Whether at the same time and place, the accused,in furtherance of common intention, intentionallyinflicted simple injuries on Tamilselvi?3. What are the offences committed by the accused?Instead of framing the points for determination as per law, thelearned Magistrate simply, in an unsatisfactory manner dealt withthe matter.9. In paragraphs 9 to 11, the learned Magistrate concentratedonly on the evidence relating to place of occurrence. There isnothing to indicate from the discussion of the learned Magistrate asto whether the eyewitness are partison witness or not and as to whythey should speak as against the accused falsely. The briefrecording of the history of the case by P.W.7-the doctor in Ex.P7 isrelevant as per the decision of the Honourable Apex Court in REHMATVS. STATE OF HARYANA(1997 CRL.L.J.764), an excerpt from it would runthus:"10. There is also another aspect which goes infavour of the appellant. Admittedly Padam Singh (P.W.4)along with Vijay Singh had first gone to the PrimaryHealth Centre for medical help but he did not disclose thename of the assailant to the Doctor. Ordinarily, in amedico legal case, the doctor is supposed to write downthe history of the injured but admittedly in this case,medical papers of Padam Singh (PW4) do not indicate thename of the assailant. The names were disclosed only atthe time when the complaint was recorded by SI NarainSingh at about 9.00 p.m.which was treated as a formal FIR.The learned counsel for the appellant, therefore, rightlyurged that the appellant was later on implicated in thepresent crime at the instance of the complainant and hisfriends. It may also be stated that the prosecution caseeven otherwise appears to us improbable because PadamSingh (PW4) claims to have got up early in the morning andsaw the appellant running from the side of his room atabout 3.30 a.m.In these circumstances, it is not possibleto sustain the conviction of the appellant under Sections307/393 of the Indian Penal Code."but the learned Magistrate has not taken into consideration thatpiece of evidence at all. In fact, in this case, peculiarly, soonafter the occurrence, the injured appeared before the Doctor andnarrated the history of the case, which was recorded by the Doctorin Ex.P4 itself.10. No doubt, generally speaking this is a small case and notinvolving only grave offence. Even then, once the de-factocomplainant approaches the Court for justice, the Court cannotsimply turn the de-facto complainant out of Court without properlyscanning the evidence and delivering a proper judgement. I am fullyaware of the fact that revisional jurisdiction of the High Court in https://hcservices.ecourts.gov.in/hcservices/ respect of acquittal matters is very much limited. Nevertheless, ifthe Court finds that the Magistrate dilli dallied with the matterand thereby threw the baby along with bath water, then normally itshould be taken as perverse attitude on the part of the Magistratein handling the case. There is also nothing to indicate as to whyP.W.1 being a lady should go to the extent of setting the criminallaw in motion falsely and the other witnesses also should commitperjury. Without considering in detail the various aspects of thematter, just by picking holes here and there the learned Magistratein a perfunctory manner acquitted the accused, warranting theupsetting of the said findings of the lower Court by this Courtwhile exercising revisional jurisdiction.11. Accordingly, the judgement of the trial Court is set asideand the matter is remitted back to the Special Judicial Magistrate,Darapuram, for reconsidering the matter after hearing both sides aufait with law and au courant with facts. The learned Magistrate isexpected to see that the matter is disposed of within two monthsfrom the date of receipt of copy of this order. Send both therecords immediately to the lower Court.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarMskTo1. The Special Judicial Magistrate, Darapuram.2.The Sub Inspector of Police, State of Tamil Nadu, Potykampalayam, Kundalam Police Range, Earapuram Taluk, Erode District.3. The Public Prosecutor, High Court.4.The Section Officer,Crl.Section, High Court, Madras.GV(CO)km/16.7.Crl.R.C.No.11 of 2006