Mrs. Thippey Baby v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 09.04.2008CORAMTHE HONOURABLE MR.JUSTICE T. SUDANTHIRAMCrl.R.C.No.344 of 2006Mrs.Thippey BabyPetitioner Versus1. State by the Inspector of PoliceKetti Police StationThe Nilgiris.2.Mr.C.K.N.Ramesh3.C.K.N.Mahesh4.C.K.N.Babu5.Mr.N.Krishnan RespondentsRevision petition filed against the order of acquittal passedby the Sessions Court, Udhagamandalam, The Nilgiris, made inS.C.No.45 of 2005, on 11.11.2005, acquitting respondents 2 to 5under Section 307, 324 r/w 34 of the Indian Penal Code.For Petitioner: Mr.Lenin for M/s. Lenin and BhagyaFor Respondents: Mr.R.Shanmugha Sundaram Public Prosecutor for R1. M/s.M.V.Purushothaman for R2 to R5.JUDGMENTThe petitioner who was examined as P.W.1 in S.C.No.45 of 2005,on the file of the Sessions Court, Udhagamandalam has preferredthis revision against the Judgment passed by the learned SessionsJudge, acquitting the accused 1 to 4 from the charges under Section307, 324 r/w 34 of the Indian Penal Code. 2. The accused 1 to 3 are brothers. The fourth accused who isfriend of accused 1 to 3 is working as a driver. There was a land https://hcservices.ecourts.gov.in/hcservices/ dispute between the accused 1 to 3 and P.W.1 Thippey Baby withregard to a land measuring about 4 acres and 30 cents and a CivilSuit is also pending. On 16.10.2003 at 1.30p.m.,, when P.W.1 wentto the radish field, the accused 1 to 3 came there and the firstaccused tried to attack P.W.1 on her head with the wooden log andas she warded of with the hands, the attack fell on her left handand also on her cheek. Then she lost her teeth and the secondaccused beat P.W.1 on her right elbow with pick axe(bfhj;J). Thethird and fourth accused kicked her with legs on her hips andthigh. As P.W.2, P.W.4 and others rushed to the scene, theaccused dropping M.O.1 and M.O.2 ran away from the scene. P.W.2and P.W.4 brought a jeep and took P.W.1 to the Government Hospitaland P.W.3 Doctor examined her and noticed the following injuries:"i) Jaw Bone Fracture?ii) Swelling of upper and lower lipiii) Contusion on left upper arms 5 cms diaiv) Laceration 2 cms dia circular Rt.elbow.Ortho Surgeons: Opinion = Fracture Lt Mumerus}Dental Surgeon's opinion:Fracture Mandible(Lt)} GrievousFracture Zygoma }Fracture Zygo arch(Rt)" }The Doctor issued Ex.P.2, accident register and also Ex.P.3wound certificate. The Doctor also opined that the injuries 1 to 4are grievous injuries. P.W.7 Sub Inspector of Police on receivinginformation from the Government Hospital went to the F.S.Ward ansseen P.W.1 who was admitted as inpatient and received thecomplaint Ex.P.1 and registered a case in Crime No.152 of 2003 at9.30p.m. for offence punishable under Section 323, 324, 325 and 307IPC. Ex.P.8 is the FIR.3. P.W.8, Inspector of Police took up investigation and wentto the hospital and recorded the statement of P.W.1. He arrestedthe accused 3 and 4 on 17.10.2003 at 6.30a.m., near Kerada busstand. P.W.8 went to the scene of occurrence and prepared theobservation mahazar and rough sketch and recovered M.Os.1 to 4, atthe scene of occurrence under Ex.P.11. On completing theinvestigation a final report was filed on 24.11.2003.4. The learned counsel for the petitioner submitted that P.W.1is a victim aged 65 years at the time of occurrence had givenevidence about she being attacked by the accused. The occurrencealso being witnessed by her son P.W.2 who was at the distanceworking in the upper portion of the field and also was witnessed byP.W.4 whose house is next to the field. The medical evidence showsthat P.W.1 sustained injury due to violence and also sustainedfracture and was also admitted in the hospital as inpatient. Thelearned counsel for the petitioner further submitted that theevidence of P.W.1 injured witness being corroborated by medicalevidence and other witnesses, has not been relied on by the learned https://hcservices.ecourts.gov.in/hcservices/ Sessions Judge for some erroneous reasons. The appreciation ofthe evidence of P.W.1 and other witnesses has not been done by thelearned Sessions Judge with the Judicial approach. Ultimately theevidence of P.W.1 has been entirely ignored and it had resulted ingrave miscarriage of justice to the petitioner herein.5. The learned Senior Counsel Mr.Shanmughasundaram for therespondents 2 to 5/accused 1 to 4 submitted that reappraisal ofevidence is not possible in a case of revision against acquittal.As there was a civil dispute between the parties, there was apossibility of witnesses to depose falsely against the accused.The learned Senior Counsel further submitted that the trial Courthad acquitted the accused, since the medical evidence has not beenstrengthened by marking X-rays and examining the radiologists.According to the trial Court, there are different versions withregard to the place of occurrence and P.W.4 is an interestedwitness. 6. The learned counsel also relied on the decision reported inAIR 1962 SC 1788 (Chinnaswamy v. State of Andra Pradesh andanother), viewed that only in case of exceptional nature, the HighCourt can justifiably interfere with an order of acquittal and suchan exceptional circumstance is not available in this case. As theSessions Judge had carefully analysed all the evidence, it cannotbe said in this case that the material evidence has been overlookedby the trial Court.7. The learned Government Advocate(Criminal side) was alsoheard. The learned Government Advocate submitted that theevidence of an injured witness can be accepted even without thecorroboration of any other witness and in this case, the evidenceof P.W.1 is also supported by P.W.2, her son and also by evidenceof P.W.4, independent witness. The injuries sustained by P.W.1are also established by medical evidence, by way of examining P.W.3Doctor and marking the accident register and wound certificateExs.P.2 and P.3 respectively.8. This Court considered the submissions made by all partiesand perused the Judgment rendered by trial court and also the otherrecords. The main reason given by the trial Court for acquittal ofthe accused are as follows:(i) Though P.W.3 Doctor had opined that the injuriessustained by P.W.1 is based on the opinion given by the Dentistthat there was a fracture on the left jaw and there is fracture onthe left cheek bone psychoma, but X-ray not marked and Doctor whogave opinion about fracture is not examined. Therefore the grievousnature of injury is not established.(ii) In Ex.P.2 it is mentioned by P.W.3 Doctor as informed byP.W.1, the names of A.1 to A.3 as assailants and not the name ofthe fourth accused . The inclusion of the fourth accused affectsthe prosecution case. https://hcservices.ecourts.gov.in/hcservices/ (iii) P.W.2 being son of P.W.1 is not speaking the truth.(iv) P.W.4 had taken the land of P.W.1 for lease and alsofiled a case before the Court against the mother of the accused 1to 3 and the first accused and therefore he is not an independantwitness and he is only the supporting witness for P.W.1.(v) There is no proof to show that the copy of FIR beingserved to P.W.1.(vi) According to P.W.1, the place of occurrence was onlyradish filed and according to P.W.2 it was on the pathway andaccording to the Investigating Officer, it was only the turnipfield. 9. It appears from the evidence of P.W.1 a lady who is agedabout 65 years at the time of occurrence had sustained injuries dueto violence. Though according to the suggestion put by thedefence, that P.W.1 had fallen from the jeep and sustainedinjuries, P.W.3 Doctor had categorically stated that the injuriessustained by P.W.1 were not possible by fall and it is possibleonly by assault. If that is so, the question only remains who isthe assailant. The occurrence had taken place only in the datetime, ie., at 1.30p.m., that too in the field. Admittedly therehas been a land dispute between P.W.1 and the accused party.While so, when P.W.1 injured witness says that she was assaulted bythe accused, there must be strong reasons to reject her evidence.The evidence of injured witness alone can be relied on without anycorroboration from other witnesses, if it is corroborated bymedical evidence. Further whether P.W.4 can be considered as anindependent witness or not, his house being nearer to the scene ofoccurrence, his presence at the scene of occurrence is natural.10. The rejection of the evidence of P.W.1 by the trial courtdoes not appear to be on acceptable reasons. If that be the case,it is to be considered as the material evidence of P.W.1 and themedical evidence has been overlooked. Whether the injury isgrievous in nature or not is to be considered only at the stageafter deciding whether any assault was made on the victim or anyact of violence has been done by the accused. The approach of thelearned Judge in his Judgment as a first point whether it isestablished, the injury caused is of grievous in nature or not, iswrong.11. In the decision of the Honourable Supreme Court reportedin AIR 1981 SC 1415 (Ayodhya Dube and others v. Ram Sumer Singh),it has been observed as follows:"........A perusal of the judgments of the HighCourt and the Sessions Judge shows that the High Courtwas fully alive to the scope and extent of itsrevisional powers when dealing with orders of acquittal. https://hcservices.ecourts.gov.in/hcservices/ The High Court referred to the judgment of this Court inChinnswamy v. State of Andhra Pradesh reported in AIR1962 SC 1788, after referring to the decision of thisCourt the High Court said,"In the instant case, we find that this is a caseof non-application of mind on the part of the courtbelow. The probative value of the First InformationReport has been entirely ignored. The individualtestimony of the eye-witness has not been discussed andtheir reliable testmony has been ignored, from which itfollows that material evidence has not been consideredand it has been overlooked. The entire judgment is fullof inconsistencies. The Court below has misquoted theevidence at some places, for example, while dealing withthe copy of statement (Ex.Ka-18). The judgment consistsof faulty reasoning and lack of judicial approach.Accepted canons for appreciating evidence have beenthrown to the wind. The conclusions on the question ofmotive are against the weight of overwhelming evidencein the case. In our opinion, the view expressed by theCourt below has resulted in grave miscarriage of justiceso far as the opposite parties Uma Shanker, GirijaShanker, Gauri Shanker, Achhaibar, Jhabbar, Bansu, RamKatal, Ayodhya Dube and Vindhyachal are concerned. Theabove, in our opinion, are exceptional circumstanceswhich compel us to order retrial of the aforesaidopposite parties."In our view, the High Court has given adequatereasons for interfering with the acquittal and orderinga retrial of the appellants. We may add that the HighCourt also expressed the view that the instancesmentioned by this Court in Chinnswamy v. State of AndhraPradesh as justifying interference with orders ofacquittal in the exercise of revisional powers wereillustrative and not exhaustive. We agree with the viewexpressed by the High Court and we only wish to saythat the Criminal Justice System does not admit of'pigeon-holding'. Life and the Law do not fall neatlyinto slots. When a Court starts laying down rulesenumerated (1), (2), (3), (4) or (a), (b),(c),(d), it isarranging for itself traps and pitfalls. Categories,classifications and compartments, which statute does notmention, all tend to make law 'less flexible, lesssensible and less just.'12. On the basis of the ratio laid down by the Apex Court,this court feels that in this case, the Judgment of the trial Courtconsists of invalid reasonings and lack of judicial approach andthe accepted canons for appreciating evidence have been thrown tothe wind which caused the grave miscarriage of justice to thepetitioner. https://hcservices.ecourts.gov.in/hcservices/

13. P.W.1 had stated to the Doctor that she was assaulted byRamesh, Babu and Mahesh A.1 to A.3 and she has not mentioned thename of the fourth accused. Whether it is proper for Doctor tomention the name of assailants in the accident registers though thenames of A.1 to A.3 mentioned can not taken as basis for convictionon them, the non-mentioning of the name of fourth accused by P.W.1can be taken in fovour of the fourth accused. Further theallegation against the fourth accused is that he had kicked heronly later. The overt act attributed to the fourth accused is notcorroborated by medical evidence. Though some overt act isattributed to the third accused, his presence at the scene ofoccurrence is established by evidence of P.Ws.1,2 and 4.Therefore, giving the benefit of doubt, the acquittal of the fourthaccused alone is proper. Therefore, the acquittal of the fourthaccused/fifth respondent alone is confirmed by this Court. Theacquittal of the accused 1 to 3/respondents 2 to 4 is set aside andthe matter is remanded back for retrial. 14. This Court now wants to make it clear by ordering thisretrial. that this Court is not directing for a de novo trial. Thetrial Judge has to decide the case on the basis of the evidencealready on record and also may record additional evidence asrequired by parties.15. The Honourable Supreme Court has held in the decisionreported in 2005 SCC (Crl.)276 ( Satyajit Banerjee and Others v.State of West Bengal and Others) as follows:"25. Since strong reliance has been placed on BestBakery Case (Gujarat riots case) it is necessary torecord a note of caution. That was an extraordinarycase in which this Court was convinced that the entireprosecution machinery was trying to shield the accusedi.e., the rioters. It was also found that the entiretrial was a farce. The witnesses were terrified andintimidated to keep them away from the court. It is inthe aforesaid extraordinary circumstances that theCourt not only directed a de novo trial of the wholecase but made further directions for appointment of thenew prosecutor with due consultation of the victims.Retrial was directed to be held out of the State ofGujarat.26. The law laid down in Best bakery case in theaforesaid extraordinary circumstances, cannot beapplied to all cases against the established principlesof criminal jurisprudence. Direction for retrialshould not be made in all or every case where acquittalof accused is for want of adequate or reliableevidence. In Best Bakery case the first trial wasfound to be a farce and is described as "mock trial".Therefore, the direction for retrial was in fact, for a https://hcservices.ecourts.gov.in/hcservices/ real trial. Such extraordinary situation alone canjustify the directions as made by this Court in BestBakery case.27. So far as the position of law is concerned weare very clear that even if a retrial is directed inexercise of revisional powers by the High Court, theevidence already recorded at the initial trial cannotbe erased or wiped out from the record of the case.The trial Judge has to decide the case on the basis ofthe evidence already on record and the additionalevidence which would be recorded on retrial."16. This Court now directs the trial Judge for retrial inrespect of accused 1 to 3 and shall take a decision on the basis ofthe entire evidence on record and strictly in accordance with lawwithout in any manner being influenced or inhibited by anything saidon the evidence in this Judgment by this Court.17.The revision petition is allowed except in respect of fifthrespondent.KsrSd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1. The Sessions JudgeSessions Court,UthagamandalamThe Nilgiris.2. The Public Prosecutor,Chennai.1 cc to M/s.N.Chandrasekaran, Advocate, SR.20001sji (co)dv/21.4.Crl.R.C.No.344 of 2006