Jogappa v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:13.7.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.366 of 2006Jogappa... Petitioner/DefactoComplainantvs.1.The State, rep.by Inspector of Police, Thalli Police Station, Denkani Kottai Taluk, Krishnagiri District...Respondent/Complainant2.Munimallappa @ Rajappa3.Mallappa4.Jogamari5.Srinivasan... Respondents/Accused 1 to 4 Petition filed under Section 397 r/w 401 of Cr.P.C. against theorder dated 12.4.2006 passed by the District Munsif cum JudicialMagistrate, Denkanikottai, in CC.No.50 of 2004.For Petitioner : Mr.P.ManiFor Respondents : Mr.R.Muniyapparaj,G.A. For R1 O R D E R Challenging and impugning the order dated 12.4.2006 passedby the District Munsif cum Judicial Magistrate, Denkanikottai, inC.C.No.50 of 2004, this criminal revision case is focussed.2. A 'resume' of facts, absolutely necessary and germane forthe disposal of this criminal revision case would run thus:The police laid the police report in terms of Section 173 ofCr.P.C. as against four accused persons for the followingoffences:Case No.AccusedOffenceC.C.No,.50 of 20041st accusedSec.324, 506(ii) IPC2 to 4Sec.323, 506(ii) IPCInasmuch as the accused pleaded not guilty, the trial wasconducted. (b) During trial, on the prosecution side P.W.1 to P.W.8 were https://hcservices.ecourts.gov.in/hcservices/ examined and Exs.P1 to P5 were marked. On the accused side, nooral or documentary evidence was adduced.(c) Ultimately, the trial Court acquitted all the accused. 3. Being aggrieved by and dissatisfied with the judgement ofthe lower Court, this revision is focussed on various grounds, thewarp and woof of them would run thus:Ignoring the evidence of P.W.1 and other eyewitnessesin this case and also the medical record, the lower Courtacquitted unjustifiably all the accused. 4. Despite service of notice to the accused and printing theirnames, none appeared.5. Heard the learned counsel for the revision petitioner andalso the learned Government Advocate(Crl.Side).6. The learned Government Advocate would state that the Statehas not preferred any appeal as against acquittal. 7. The point for consideration is as to whether there is anyperversity or non-application of law on the part of the trialCourt in acquitting the accused.8. The learned counsel for the revision petitioner woulddetail and delineate the facts and advance his argument to theeffect that Ex.P5-the Wound Certificate was marked in view of theclear and categorical endorsement made by the counsel for theaccused in Crl.M.P.No.417 of 2006 as under:"No objection to marking the documents because thegenuineness of the documents may be admitted."9. In such a case, the trial Court should have placedreliance on the Wound Certificate and the evidence of P.Ws.1,2 and5 and recorded the conviction as against the accused for theoffences, with which they were charged. But, unjustifiably, allthe accused were acquitted.10. At this juncture, it is just and necessary to pithily andprecisely narrate the case of the prosecution.On 17.12.2003 at about 8.30 a.m. at Dhali Kothanoor, A1 to A4,in furtherance of their common intention to attack the injured,namely, Jogappa, with dangerous/deadly weapon, inflicted injurieson him in connection with some land dispute and also ownershipover a tree. The injured Jogappa went to the hospital and tooktreatment, after narrating the incident to the Doctor. Whereupon,the doctor recorded the history, narrated before him by Jogappah,in Ex.P5 and gave him treatment. The Doctor also set out the https://hcservices.ecourts.gov.in/hcservices/ injuries sustained by Jogappa in Ex.P5.11. The core question arises as to whether the historyrecorded by the Doctor in Ex.P5 is admissible in evidence. 12. At this juncture, my mind is reminiscent and redolent ofthe following decisions of the Honourable Apex Court: (1997 CRL.L.J.764)-REHMAT VS. STATE OF HARYANA, an excerptfrom it would run thus:"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 disclosethe name of the assailant to the Doctor. Ordinarily, ina medico legal case, the doctor is supposed to writedown the history of the injured but admittedly in thiscase, medical papers of Padam Singh (PW4) do notindicate the name of the assailant. The names weredisclosed only at the time when the complaint wasrecorded by SI Narain Singh at about 9.00 p.m.which wastreated as a formal FIR. The learned counsel for theappellant, therefore, rightly urged that the appellantwas later on implicated in the present crime at theinstance of the complainant and his friends. It mayalso be stated that the prosecution case even otherwiseappears to us improbable because Padam Singh (PW4)claims to have got up early in the morning and saw theappellant running from the side of his room at about3.30 a.m.In these circumstances, it is not possible tosustain the conviction of the appellant under Sections307/393 of the Indian Penal Code.(emphasis supplied).13. A plain reading of the above judgement of the HonourableApex Court would reveal that the history recorded by the Doctor inthe Wound Certificate should be taken as evidence in adjudging thecriminal case.14. P.W.1 and P.W.5 are brothers and they corroborated eachothers versions. However, P.W.2, would implicate A1 alone as theperson, who attacked the injured Jogappa with a bamboo stick.15. The question arises as to whether the evidence of P.W.2 isworthy of being considered.16. Undoubtedly, the accused is presumed to be an innocent asper criminal jurisprudence. Even then when there is positiveevidence given by the injured as P.W.1, and it is corroboratedpartly by the eyewitness, who is not termed as a partison witness,naturally, the trial Court is expected to give due weightage tothat much piece of evidence. https://hcservices.ecourts.gov.in/hcservices/

17. Peculiarly in this case, Ex.P5 was marked with the consentof the counsel for the accused. In fact, the learned counsel forthe accused made endorsement in Crl.M.P.417 of 2006, as extractedsupra.18. At this juncture, I recollect and call up the followingFull Bench judgment of the Hon'ble Allahabad High court:1981 Cri.L.J.379 (Saddiq and others vs. State), an excerptfrom it would run thus:"11. In Jagdeo Singh vs. State (1979 Cri LJ 236) aDivision Bench of this Court held "it was not permissibleto exhibit the post-mortem report under Section 294 Cr.P.Cand even if it was done the report could not be used assubstantive piece of evidence until and unless the doctorconcerned was examined in Court. Documents that Section294, Cr.P.C contemplates reading in evidence upon admissionabout genuineness by the opposite party are only suchdocuments which when formally proved speak for themselves.It does not refer to any document, which even if exhibitedcannot be read in evidence as substantive evidence". Withgreat respect, we are unable to agree with the view takenby this Court in the above mentioned case. As mentionedearlier, there is no restriction placed on documents insub-section (1) of Section 294, Cr.P.C and it applies toall documents filed by the prosecution or the accused. Ifthe genuineness of any document filed by the prosecution orthe accused under sub-section 91) of Section 294, Cr.P.C isnot disputed by the opposite party sub-section (3) ofSection 294, Cr.P.C is applicable and it may be read assubstantive evidence. It is true that prior to the cominginto force of the Code of Criminal Procedure, 1973 thepost-mortem report after it was proved was not substantiveevidence but only corroborated the statement of the doctormade in court and even now if the genuineness of the post-mortem report is disputed by the accused, the doctor mustbe examined to prove the injuries found on the body of thedeceased and also the post-mortem report and the post-mortem report may only be used to corroborate or discredithis testimony which is the substantive evidence. This,however, cannot lead to the conclusion that the post-mortemreport cannot be read as substantive evidence under sub-section (3) of Section 294, Cr.P.C if its genuineness isnot disputed by the accused. As already mentioned, thevery object of enacting Section 294 Cr.P.C would bedefeated if the signature and the correctness of thecontents of the post-mortem report are still required to beproved by the doctor concerned even if its genuineness isnot disputed by the accused. Section 294 Cr.P.C is clearand unambiguous. It is only when the genuineness of thepost-mortem report filed by the prosecution is not disputed https://hcservices.ecourts.gov.in/hcservices/ by the accused that sub-section (3) of Section 294, Cr.P.Cis applicable and the post-mortem report may be read assubstantive evidence and the signature and the correctnessof its contents need not be proved by the doctor concerned.We are, therefore, clearly of the opinion that if thegenuineness of the post-mortem report filed by theprosecution under sub-section (1) of Section 294, Cr.P.C isnot disputed by the accused, it may be read as substantiveevidence under sub-sec(3) of Section 294, Cr.P.C."19. The Full Bench judgment of the Hon'ble Rajasthan HighCourt reported in 1996, Cri.L.J, 2015 (Shabbir Mohammad vs. Stateof Rajasthan) is also in consonance with the Full bench judgementof the Hon'ble Allahabad High court, cited supra.20. A plain reading of the aforesaid decisions would clearlyindicate that if a document is marked with the consent of otherside under Section 294 of Cr.P.C., the same could be relied on andit would be too late in the day on the part of the accused to veerround by having a volte face and dispute the genuineness of such adocument, for which, consent was given already. 21. In this case, the trial Court should have given dueweightage to all these facts set out supra, but taking intoconsideration that some of the witnesses turned hostile and P.W.2had not fully implicated all the accused, the learned Magistratehad chosen to throw the baby along with bath water, which, in myopinion warrants interference. The Magistrate should haveconsidered at least the case as against A1, in the light of Ex.P5and also the evidence of P.W.1, but that was not considered,without applying the proper law.22. At this juncture, my mind his reminiscent and redolent ofthe following 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 (nowJharkhand) and another; an excerpt from it would run thus:"13. The instant case is not one where any such illegalitywas committed by the trial court. In the absence of anylegal infirmity either in the procedure or in the conductof the trial, there was no justification for the High Courtto interfere in exercise of its revisional jurisdiction. Ithas repeatedly 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 wasnot justified in interfering with the order of acquittal inexercise of its revisional jurisdiction at the instance of https://hcservices.ecourts.gov.in/hcservices/ the informant. It may be that the High Court onappreciation of the evidence on record may reach aconclusion different from that of the trial court. But thatby itself is no justification for exercise of revisionaljurisdiction under Section 401 of the Code of CriminalProcedure against a judgment of acquittal. We cannot saythat the judgment of the trial court in the instant casewas perverse. No defect of procedure has been pointed out.There was also no improper acceptance or rejection ofevidence nor was there any defect of procedure orillegality in the conduct of the trial vitiating the trialitself. (ii) 2005 Supreme Court Cases (cri) 276 – Sathyajit Banerjeeand Others vs. State of W.B.and others, an excerpt from it wouldrun 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 theHigh Court only in very exceptional cases where the HighCourt finds defect of procedure or manifest error of lawresulting in flagrant miscarriage of justice."23. 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 viewis possible or a different view could be taken. 24. It is clear that acquittal by the trial Court tantamountsto re-enforcement of the presumption that the accused is aninnocent person. But in all cases, that should not be taken asthe infallible Rule to be applied. 25. Here, the order, which is challenged in this criminalrevision warrants interference because the Magistrate did nottake into account the relevant law points and also the evidence sofar accused No.1 is concerned.26. No doubt, there is enormous delay on the part of thepolice in registering the FIR as well as in sending the FIR to theCourt. The core question arises as to who has to be blamed forthat and whether the de-facto complainant should suffer because ofthe police officials' inaction. 27. It is a peculiar case, where soon after the incident, theinjured approached the Doctor and took treatment, as revealed byEx.P5, a genuine document. In such a case, the delay in lodgingthe FIR, and also in sending it to the Magistrate would die downin oblivion and all the defects would get relegated to a lowerlevel. The Court has to separate the grain from the chaff and https://hcservices.ecourts.gov.in/hcservices/ accordingly, if viewed, the acquittal passed as against A1 shouldbe set aside and the matter has to be sent back to the lower Courtfor considering afresh the available evidence after hearing bothsides and arrive at a conclusion, as per law relating to A1 alone.28. Accordingly, the criminal revision case is partly allowed.On receipt of a copy of this order, the Magistrate shall do wellto see that within a period of two months from the date of receiptof this order, after hearing both sides, the matter is disposedof on merits in accordance with law.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarMskTo1.The District Munsif cum Judicial Magistrate, Denkanikottai,Krishnagiri District.2.-do- thro' the Chief Judicial Magistrate,Dharmapuri District at Krishnagiri.3.The Section Officer,Crl.Section, High Court,Madras.4.The Inspector of Police, Thalli Police Station, Denkani Kottai Taluk, Krishnagiri District.5.The Public Prosecutor, High Court, Madras.+1cc to MR.P.Mani, Advocate Sr 30998NTK(CO)km/24.7.Crl.R.C.No.366 of 2007