R.Kandasamy v. Varadharajan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :8.7.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.301 of 2007R.Kandasamy ..Petitionervs.

Varadharajan2.Ramaiya3.Kumar4.Lokiya5.Gokilamurugan6.Rajendran7.Arupaiyan @ Arumugam8.Sithan @ Sitti9.The State by Sub Inspector of Police, Edappadi Police Station, Salem District. Crime No.67/2004 ..Respondents Petition filed under Section 397 r/w 401 of Cr.P.C. against theorder dated 30.11.2006 passed by the Assistant Sessions Court, Sankari, in S.C.No.220 of 2006.For Petitioner : Mr.N.ManokaranFor Respondents : Mr.P.Jagadeesan for R1 to R8 Mr.R.Muniyapparaj for R9

O R D E R Animadverting upon the order dated 30.11.2006 passed by the Assistant Sessions Court, Sankari, in S.C.No.220 of 2006 thiscriminal revision case is focussed.

Compendiously and concisely, the relevant facts which areabsolutely necessary and germane for the disposal of this criminalrevision case would run thus: (a) The police laid the police report in terms of Section 173 ofCr.P.C. as against the accused for the following offences: https://hcservices.ecourts.gov.in/hcservices/ Case No.AccusedOffenceC.C.No.220 of20063,4,7Sec.147 IPC1,2,5,6,8Sec.148 IPC3Sec.323(3 counts)4Sec.323(4 counts)7323(2 counts)1Sec.324(2 counts)5,6Sec.324 IPC8Sec.324 (5 counts)2,5Sec.307 IPCBefore the Magistrate, the accused pleaded not guilty, whereupon, thetrial was conducted. (b) During trial, on the side of the prosecution, P.Ws.1 to 11were examined; Exs.P1 to P13 and M.Os.1 and 2 were marked. On theside of the accused, D.W.1 was examined and Ex.D1 to D8 were marked. (c) Ultimately, the trial Court acquitted the accused. Aggrievedby and disconcerted with the judgement of the lower Court, the de-facto complainant preferred this revision on various grounds, thewarp and woof of them would run thus:-The trial Court failed to take into account the injury sustainedby P.Ws.1 to 5 and 7 and also the medical evidence supporting theversions of the injured persons. Over and above that, theeyewitnesses P.Ws.8 and 9 also spoke about the incident. As such, absolutely, there is no objectivity on the part of the lower Court inanalysing the evidence and arriving at the conclusion.

Heard the learned counsel for both sides as well as thelearned Public Prosecutor.

The point for consideration is as to whether there is anyperversity or non-application of law on the part of the lower CourtJudge in acquitting the accused.

The learned counsel for the revision petitioner would, byreiterating the grounds of revision, point out that in this case theinjuries sustained by the injured persons are beyond doubt, as theyare supported by the medical evidence. Over and above that, the veryfact that the accused themselves lodged counter complaint woulddisplay and demonstrate that the occurrence actually took place. https://hcservices.ecourts.gov.in/hcservices/

Whereas, the learned counsel for the accused would invite theattention of this Court to paragraph No.15 of the judgement of thelower Court and advance his argument that the lower Courtappropriately and appositely, correctly and convincingly arrived atthe conclusion that there might have been factional fight between twogroups and in that the injuries on the injured persons, referred tosupra, might have occurred. In such a case, taking intoconsideration the version on one side alone conviction cannot berecorded.

At this juncture, my mind his reminiscent and redolent of thefollowing decisions of the Honourable Apex 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 tointerfere 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 under Section 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 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 thesettled legal position that the revisional jurisdiction, atthe instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court https://hcservices.ecourts.gov.in/hcservices/ finds defect of procedure or manifest error of law resultingin flagrant miscarriage of justice. "

A bare perusal of those decisions would exemplify anddemonstrate that the High Court, while exercising its revisionaljurisdiction is not expected to interfere with the finding of factarrived at by both the Courts below simply because one other view ispossible or a different view could be taken.

In this case, the lower Court took pains to analyse theevidence of each and every witnesses and no doubt the injuriessustained by the injured persons were proved by medical evidence. The core question arises as to whether the case can be brought withinthe four corners of voluntarily causing hurt by the accused orwhether it could be brought within the four corners of Section 304 ofIPC.

At this juncture, I would like to refer fruitfully thefollowing decision of this Court:1990 MLJ (crl.) 332 MAD – ARULANANDAM AND ANOTHER V. STATE, anexcerpt from it would run thus: "5. Usually this Court does not interfere on pure questions offact, in revision. However, the exercise of revisional powercannot be barred when miscarriage of justice is patent. Thetrial Magistrate, while conceding the possibility of themedical evidence supporting the defence version, held that itsupported the prosecution as well. However, the appellatejudge on pure surmises contrary to the medical evidence, hasfound that the injuries must have been due to running over bythe bus. The medical evidence may have to be tested as anyother piece of evidence, but in cases of this nature when theocular evidence and the medical evidence do not tally, thecourts will have to look for some circumstances to lendassurance, to the oral evidence. There are no circumstancesavailable on record to indicate positively that the occurrencecould have taken place only as put forth by the prosecution.I am unable to find any rashness or negligence on the part ofthe petitioners for this inevitable accident could haveoccurred as put forth by the petitioners as well. This isnot, a usual case of hitting of a motor vehicle, because ofover speed or otherwise where one can safely presume rashnessor negligence.6. On the totality of the materials placed before this Court, it will be absolutely, unsafe to convict the petitioners. Therefore, they are certainly entitled to the benefit ofdoubt. Hence, the convictions and sentences imposed on thepetitioners are set aside and they are acquitted. https://hcservices.ecourts.gov.in/hcservices/ Consequently, this revision is allowed. If the fine amounthas already been paid by the petitioners, the same shall bereturned to the petitioners. "

As such, it is clear that when there is doubt about theinjuries sustained by persons as to whether they sustained injuriesin a free fight or group fight or factional fight or due to voluntaryact of one as against the other, unless there is evidence todemonstrate that one group is the aggressor against the other, thequestion of finding one group guilty of the offence would not arise. Since the Magistrate felt that these injuries might have occurred dueto free fight between the two groups and ultimately acquitted theaccused, I am of the considered opinion that interference with thefinding of lower Court, in revision is not warranted. As such, thereis no merit in the revision and the same is dismissed.sd/-Asst. Registrar/true copy/Sub Asst. RegistrarMskTo1. The Judicial Magistrate No.1, Sankari.2. -do- Through The Chief Judicial Magistrate, Salem.3. The Assistant Sessions Judge, Sankari.4. -do- Through The Principal Sessions Judge, Salem.5. The Sub Inspector of Police, Edappadi Police Station, Salem District.6. The Public Prosecutor, High Court, Madras. Copy to: The Section Officer, Criminal Section, High Court, Madras.+ 1 c.c. to Mr. N. Manokaran, Advocate. S.R.No.29726.+ 1 c.c. to Mr. P. Jagadeesan, Advocate. S.R.No.29664.Crl.R.C.No.301 of 2007RSI (CO)GSK 29.07.2009.