Sivanesan v. The State

BAIL SLIP The Petitioners 1 to 3 (Appellants 1 to 3/Accused 1 to 3) werereleased on bail in and by the order of this court dated.23.11.2006made in Crl.M.P.No.1 of 2006 in Crl.R.C.No.1342 of 2006 on the fileof the High Court, Madras.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:25.6.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.1342 of 20061.Sivanesan2.Arulraj3.Yuvaraj4.Vijayakumar5.Murugan... Petitioners /Appellants/Accused 1 to 5vs.The State:The Inspector of Police,B-7, Police Station(L & O)Coimbatore City... Respondent/Respondent/(Crime No.627/2003)Complainant. Petition filed under Section 397 r/w 401 of Cr.P.C. seeking toset aside the order dated 15.11.2006 passed by the AdditionalDistrict and Sessions Judge, Fast Track Court No.2, Coimbatore, inC.A.No.73 of 2006, modifying the conviction and sentence imposed bythe Judicial Magistrate No.VI, Coimbatore, by his judgement dated17.1.2006 passed in C.C.No.620 of 2003.For Petitioners : Mr.M.Chandrasekaran For Respondent : Mr.Hassan Mohammed Zinna,A.P.P ORDER Challenging and impugning the order order dated 15.11.2006passed by the Additional District and Sessions Judge, Fast TrackCourt No.2, Coimbatore, in C.A.No.73 of 2006, modifying theconviction and sentence imposed by the Judicial Magistrate No.VI,Coimbatore, by his judgement dated 17.1.2006 passed in C.C.No.620 of2003, this revision case is focussed.2. 'A' resume of facts, which are absolutely necessary andgermane for the disposal of this revision would run thus:-(a) The police laid the police report in terms of Section173 of https://hcservices.ecourts.gov.in/hcservices/ Cr.P.C. as against the revision petitioners/accused for the offencesunder Sections 147, 148, 427, 452, 506(ii) IPC, 323 r/w.149 and 326IPC. Since they pleaded not guilty, the Magistrate framed thenecessary charges and conducted the trial. (b) During trial, on the prosecution side, 14 witnesses wereexamined as P.W.1 to P.W.14 and Ex.P1 to P10 were marked and M.O.1 toM.O.3 were also marked. On the accused side, no oral or documentaryevidence was adduced.(c) Ultimately, the Judicial Magistrate No.6, Coimbatore,convicted the accused and imposed the sentence as under:Case No.Offence Punishment imposedC.C.No.620 of2003147, 148, 427, 452,506(ii) IPC-accused1 to 5One year simple imprisonment foreach of the offence and fine ofRs.100/-each for each of theoffences, in-default, three weekssimple imprisonment323 r/w.149 and 326-accused 1 to 3One year Simple imprisonment foreach of the offences and fine ofRs.400/-, in default, one weekR.I.323, 326 r/w.149-accused 4 and 5One year Simple imprisonment foreach of the offences and Fine ofRs.400/- for each accused(d) Being aggrieved by and dis-satisfied with the saidconviction recorded and the sentence imposed by the Magistrate,appeal was filed before the Additional District and Sessions Court,Coimbatore, which Court acquitted the accused of various offences andrecorded convictions and sentences as under:-Case No.OffencePunishment imposedC.A.No.73 of2006452 and 324 IPCSix months simpleimprisonment to each ofthe accused A1 to A3 147, 148, 427, 452, 506(ii), 323 r/w.149 and 324IPCFine of Rs.100/-asagainst A4 and A5323 IPCFine of Rs.1,400/- asagainst each of A4 and A53. Challenging and impugning the order of the Sessions Court,the appellants 1 to 5 preferred this revision on the followinggrounds among others:-Both the Courts below failed to appreciate the evidence of thewitnesses in proper perspective. The evidence of P.W.1 was notcorroborated by other witnesses and both the Courts below failed to https://hcservices.ecourts.gov.in/hcservices/ take into consideration the contradictions, which emerged in thedeposition of witnesses. The M.O.Nos.1 and 2 were not seized by thepolice in accordance with law and those materials objects were notshown to the Doctor to get medical opinion from the Doctor as towhether the injuries complained of by the injured could have beencaused by such weapons. The blood stained clothes were not producedbefore the Court. P.W.1, had previous enmity with the accused andthat was not considered by both the Courts below. No independentwitness to the occurrence was examined. Accordingly, the revisionpetitioners prayed for setting aside the convictions recorded and thesentence imposed by both the Courts below.4. The point for consideration is as to whether both the Courtsbelow are perverse in recording conviction without appreciating theevidence on record, warranting interference by this Court in revisionand whether the sentence imposed by the first appellate Court is inorder.5. Despite opportunities having been given, the revisionpetitioners have not appeared.6. The learned Government Advocate has made his submissions.7. A bare poring over and perusal of the records would indicateand exemplify that both the Courts below, taking into considerationthe evidence of the witnesses, including the medical evidence andmaterial objects produced, arrived at the factual finding that theaccused persons participated in the crime. The gist and kernal ofthe case of the prosecution, as per record, would be to the effectthat the accused, due to previous enmity, on 11.6.2003 at about 22.30hours, constituted an unlawful assembly, armed with deadly weapons,and trespassed into the house of P.W.1 and caused injury to him andalso damaged the articles and intimidated him with dire consequencesin pursuance of main common object and accordingly, the trial Courtframed the charges, after considering the evidence, recorded theconviction and imposed the sentence as above. However, the firstappellate Court modified the same as set out supra.8. The question arises as to whether the revisionpetitioners/accused are justified in inviting this Court to interferewith the convictions recorded by re-appreciating evidence.9. At this juncture, my mind is reminiscent and redolent of thefollowing decisions of the Honourable Supreme Court:(i) 2002 Supreme court cases (crl) 1448 - Bindeshwari PrasadSingh 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 wascommitted by the trial court. In the absence of any legalinfirmity either in the procedure or in the conduct of thetrial, there was no justification for the High Court to https://hcservices.ecourts.gov.in/hcservices/ interfere in exercise of its revisional jurisdiction. It hasrepeatedly been held that the High Court should notreappreciate the evidence to reach a finding different fromthe trial court. In the absence of manifest illegalityresulting in grave miscarriage of justice, exercise ofrevisional jurisdiction in such cases is not warranted.14. We are, therefore, satisfied that the High Court was notjustified in interfering with the order of acquittal inexercise of its revisional jurisdiction at the instance of theinformant. It may be that the High Court on appreciation ofthe evidence on record may reach a conclusion different fromthat of the trial court. But that by itself is nojustification for exercise of revisional jurisdiction underSection 401 of the Code of Criminal Procedure against ajudgment of acquittal. We cannot say that the judgment of thetrial court in the instant case was perverse. No defect ofprocedure has been pointed out. There was also no improperacceptance or rejection of evidence nor was there any defectof procedure or illegality in the conduct of the trialvitiating the trial itself. (ii) 2005 Supreme Court Cases (cri) 276 – Sathyajit Banerjee andOthers vs. State of W.B.and others, an excerpt from it would runthus:"22. The cases cited by the learned counsel show thesettled legal position that the revisional jurisdiction, atthe instance of the complainant, has to be exercised by theHigh Court only in very exceptional cases where the HighCourt finds defect of procedure or manifest error of lawresulting in flagrant miscarriage of justice."10. A bare poring over and perusal of the above judgements wouldexemplify and demonstrate that revisional Court should be reluctantto interfere with the findings recorded by the lower Court, unlessthere is perversity or non-application of law in appreciating theevidence.11. Here, in this case, the Magistrate appreciated the evidence,which was re-appreciated by the appellate Court, which being the lastCourt of fact, arrived at the conclusion. Unless there is perversityor non-application of mind on the part of the Courts below inscanning and scrutinising the evidence, the question of the HighCourt exercising its revisional power would not arise simply becausethe High Court might incline to take a different view. Motive is adouble edged weapon. Simply because the prosecution case is that dueto previous enmity, the accused staged the attack on P.W.1 and alsoothers by trespassing into the house of P.W.1, there is nothing todoubt or look askance at the evidence of the prosecution witnesses. 12. It is also a trite proposition of law that when anoccurrence take place inside the house or in the locality, the nearand dear and the relatives alone would be the witnesses. In allcircumstances, one cannot expect that persons totally unconnectedwith the place and unconnected with the injured should be examined as https://hcservices.ecourts.gov.in/hcservices/ witnesses. Nothing has been highlighted before this Court that thereis any perversity or non-consideration of any evidence placed beforethe Courts below, as per law. 13. On the prosecution side, as many as five witnesses, namely,P.Ws.1, 2, 3, 4 and 10 were examined and placing reliance on thedeposition of those witnesses, the trial Court as well as the firstappellate Court found that the occurrence took place. P.W.1-theinjured, in his deposition would narrate that on the date ofoccurrence, at about 10.30 p.m., the accused by forming themselvesinto an unlawful assembly and barged into his home by breaking openthe door of his house and among them A1, A2 and A3 physically liftedP.W.1; whereupon, A1 took a big stone and attacked him on the rightside of his head and also uttered out abusive and scurrilous,vituperative and non-U words as against him, in addition to A1having intimidated P.W.1 with dire consequences; A2, with bladecaused injury on his chest; A3 also caused injury on the back andother parts of the body of P.W.1 with blade. P.W.1 also wouldnarrate that the accused attacked his mother and father and also hisbrother-Naveen and caused injuries to them. The participation ofeach and every accused also was considered by the trial Court indetail, with reference to the deposition of the injured witnesses. 14. The trial Court clearly pointed out that deposition ofP.Ws.2, 3 and 10 were in corroboration with the deposition of P.W.1and they do hang together without any material contradiction. P.W.12and P.W.13-the doctors also supported the prosecution case and spokeabout the injuries sustained by the victims, with reference to themedical records Exs.P3, Ex.P4, Ex.P5 and Ex.P6. As such, the firstappellate Court properly applied its mind and arrived at theconclusion, warranting no interference by this Court. In fact, thefirst appellate Court took a balanced view in exonerating the accusedconcerned of the offence under Section 326 IPC even though medicalrecords show that Sumathi-one of the victims sustained fracture.15. The question arises as to whether the sentence of six monthssimple imprisonment awarded as against accused 1 to 3 for the offenceunder Sections 452 and 324 IPC is tenable taking into considerationthe nature of the injuries sustained by the victims.16. I am inclined to reduce the simple imprisonment from sixmonths to three months and as per Section 354(4) of Cr.P.C., I couldsee no special reason to reduce the sentence further from threemonths to any other lesser punishment. Taking into consideration themanner in which the attack was levelled as against the injuredpersons, I do not inclined to invoke the Probation of Offenders Actalso.17. In the result, the revision is partly allowed modifying thesix months simple imprisonment imposed on each of A1 to A3 to one ofthree months simple imprisonment. The rest of the convictionrecorded and sentence imposed shall be in tact. On receipt of thecopy of the order, if not the accused concerned underwent thepunishment, the Magistrate shall take steps to secure the presence of https://hcservices.ecourts.gov.in/hcservices/ the accused concerned, who should be imprisoned as per the order ofthe appellate Court and this Court. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar MskTo1. The Additional District and Sessions Judge, Fast Track Court No.2, Coimbatore.2. The Judicial Magistrate No.VI, Coimbatore3. The Principal Sessions Judge, Coimbatore.4. The Chief Judicial Magistrate,Coimbatore.5. The Superintendent, Central Prison, Coimbatore.6. The Public Prosecutor, High Court, Madras.7. The Inspector of Police, B-7 Police Station(L & O) Coimbatore City.Crl.R.C.Nos.1342 of 2006GR(CO)EM/13.7.09