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NOT-REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1647-1648  OF  2008 STATE REP. BY INSPECTOR OF POLICE, T.N.  …  APPELLANT

:Versus:

MANIKANDAN AND ORS.              … RESPONDENTS

O R D E R

1. These appeals are directed against the judgment and order dated 19th July, 2006 passed by the High Court of Judicature at Madras in Criminal Appeal Nos.389 & 575 of  2003  together  with  Criminal  Revision  Nos.201  and 1389 of 2002, whereby the High Court has dismissed both the  appeals  and  both  the  revisions,  confirming  the judgment  delivered  by  the  Additional  Sessions  Judge, Nagapattinam in S.C. Nos.39 of 1998 and 148 of 1999.

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2. As recorded in the impugned judgment of the High Court, there are six accused in S.C. No.39 of 1998 on the  file  of  Additional  Sessions  Judge,  Nagapattinam. They  are:  Murugesan  (A-1),  Senthil  Kumar  (A-2), Manikandan (A-3), Rajendran (A-4), Hari @ Harikrishnan (A-5) and Kathir @ Kathiravan (A-6). Since Manikandan (A-3) and Hari @ Harikrishnan (A-5) were absconding at the time of trial, their case was separated and they were subsequently secured and tried in S.C. No.148 of 1999. A separate trial was conducted in S.C. No.39 of 1998 as against A-1, A-2, A-4 and A-6. Both these cases ended in acquittal. Hence, the State preferred criminal appeals, being Criminal Appeal No.389 of 2003 against the judgment in S.C. No.148 of 1999 and Criminal Appeal No.575 of 2003 against S.C. No.39 of 1998. The wife of the deceased preferred two criminal revisions (Criminal R.C. Nos.201 and 1819 of 2002) against the aforesaid judgments of the Trial Court.          

3. Before we proceed further, it is necessary for us to  set  out  the  facts  very  briefly.  A-1’s  brother

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Kaliyamurthy  was  murdered  due  to  previous  enmity  by Paneerselvam and two others. So Senthil Kumar (A-2) and Manikandan (A-1) who are the sons of Kaliyamurthy, had grudge against the deceased Gopalakrishnan as he had preferred a complaint against them in respect of an incident which took place on 21.10.1992. It was alleged that due to the said motive when Gopalakrishnan along with his wife Vijaya, was proceeding on his bicycle, Murugesan (A-1), Senthil Kumar (A-2), Rajendran (A-4) and Manikandan (A-3) assaulted Gopal @ Gopalakrishnan with Aruval, causing instantaneous death.  

4. According to the prosecution, accused Murugesan had assaulted  the  deceased  Gopalakrishnan  with  Aruval  on the right hand, accused Senthil Kumar had assaulted the deceased Gopalakrishnan with Aruval on the left ankle and  right  thigh,  causing  grievous  injuries,  accused Manikandan  had  assaulted  the  deceased  Gopalakrishnan with Aruval on the right shoulder and accused Rajendran had assaulted the deceased Gopalakrishnan on the right ankle and right thigh. There is no overt act attributed

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against accused Hari @ Harikrishnan and accused Kathir @ Kathiravan. It is the case of the prosecution that accused  Hari  @  Harikrishnan  and  accused  Kathir  @ Kathiravan  were  keeping  vigil  at  the  place  of occurrence while the other accused were committing the crime. A complaint was lodged by wife of the deceased, being Ext.P10 (Ext.P1 in S.C. No.148/1999) before the Village  Administrative  Officer  (PW-3)  who  in  turn preferred  a  complaint  before  PW-13  (in  S.C. No.148/1999).  The  Inspector,  PW-14(PW-18  in  S.C. No.148/1999)  took  up  the  investigation,  visited  the place of occurrence, prepared observation Mahazar and rough  sketch  and  recovered  material  objects,  held inquest,  examined  the  witnesses,  recorded  their statements  and  filed  the  charge-sheet.  The  learned Judicial Magistrate, Mayiladuthurai took up the case in P.R.C.  4  of  1997  and  after  furnishing  copies  under Section 207 Cr.P.C. committed the case to the Court of Sessions for trial under Section 209 Cr.P.C.

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5. The  Trial  Court  examined  fourteen  prosecution witnesses (PWs.1 to 14) and marked Exts. P1 to P21 and M.Os.1 to 13 in S.C. No.39 of 1998. As against accused Manikandan and Hari @ Harikrishnan, the case was split up as S.C. No.148 of 1999 wherein PWs.1 to 18 were examined and Exts. P.1 to 23 and M.Os.1 to 13 were marked. The Trial Court in both the matters held that the  prosecution  could  not  prove  the  charges  leveled against the accused and accordingly acquitted all the accused. Hence, appeals were filed by the State before the High Court. The High Court after considering the facts of the case and after appreciating the evidence which was adduced before the Trial Court, came to the conclusion  that  the  prosecution  case  suffers  from defects and held that the learned Sessions Judges have come to definite conclusion that the prosecution has failed  to  prove  the  guilt  of  the  accused  beyond  a reasonable doubt and affirmed the reasoning given by the Additional Sessions Judge and refused to interfere with the said decisions.

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6. We have heard the learned counsel for the parties at  length.  We  have  also  gone  through  the  judgments delivered by the learned Sessions Judge as also by the High Court of Judicature at Madras. We find that the High Court has given its reasoning in respect of the evidence which was adduced before the Trial Court, in particular, the wife of the deceased Vijaya. It appears that the High Court has correctly analysed the evidence and found that there is glaring discrepancies found in the complaint preferred by Vijaya, being Ext.P-10. The High Court has noticed that the wife of the deceased, Vijaya  had  preferred  the  complaint  soon  after  the occurrence on 24.9.1996 at about 12.00 Noon before the Village Administrative Officer. Vijaya was examined as PW-12 in S.C. No.39 of 1998. In the complaint, she had categorically  stated  that  Senthil  Kumar  (A-2)  and Manikandan (A-1) in S.C. No.148 of 1999 and Murugesan (A-1)  and  Rajendran  (A-3)  had  assaulted  her  husband with Aruval. But when she deposed before the Court as PW-12,  she  implicated  six  persons  Murugesan  (A-1),

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Senthil Kumar (A-2), Rajendran (A-3), Manikandan, Hari @ Harikrishnan and Kathir @ Kathiravan @ Kathiresan. The High Court correctly held that there is a glaring discrepancy in the complaint before the Court and in her evidence. As per Exhibit P-10, there are only four accused  and  while  deposing  before  the  Court  she improved her version and stated that there were about six persons in the scene of occurrence.   

7. It is no doubt that there is previous enmity which is  also  reflected  from  the  evidence  of  PW-13  who claimed  to  be  an  eye  witness.  The  husband  of  PW-13 Amrithalingam was murdered by one Kaliamurthy and his associates. It is also a fact that Kalaimurthy was also murdered.  The  said  eye  witness  stated  that  the occurrence took place on 24.9.1999 at about 10.30 A.M. while she was waiting for the bus to go to a grocery shop to purchase groceries. She also stated that A-1, A-2  and  A-3  had  assaulted  with  Aruval  at Gopalakrishnan.  In  the  cross-examination,  she identified A-1, A-2, A-3 and A-4 and according to her,

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those four accused persons were holding Aruval in their hands at the time of occurrence. But in the chief, she deposed that Manikandan (A-1) in S.C. No.148 of 1999 had assaulted Gopalakrishnan. But according to PW-12, there  were  six  persons  present  at  the  time  of occurrence  and  out  of  them,  four  accused  assaulted Gopalakrishnan with Aruval whereas PW-13 deposed in her cross-examination that only four persons were present at  the  time  of  occurrence.  There  were  also discrepancies  in  the  statements  of  PW-12  and  PW-13 which also have been noted by the High Court. The High Court has also noticed that no weapon was recovered from the accused. There were also discrepancies in the statements of PW-12, PW-13 and PW-14 which were not explained by the prosecution.  

8. We have further noticed that PW-12 Vijaya in her evidence had stated that after the occurrence, she went to the Village Administrative Officer at about 12.30 P.M.  and  narrated  the  facts  which  were  reduced  to writing and then read over to her and thereafter she

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signed Ext.P-10. But we have noticed that PW-13 the Village Administrative Officer after he came to learn about  the  said  incident,  went  at  the  place  of occurrence and prepared a complaint. He further deposed that Ext.P-10 alone is with his signature. He further stated that Vijaya had not given any complaint to him. Further  it  appears  that  PW-3  got  the  information through  his  Assistant  one  Kittu,  but  he  was  not examined as prosecution witness in S.C. No.39 of 1998. We  have  further  noticed  that  the  said  Kittu  was examined as PW-6 in S.C. No.148 of 1999 and did not support the case of the prosecution and was accordingly declared as hostile witness.  

9. We have also noticed that the deceased along with his wife Vijaya had gone in a bicycle to redeem her jewels from Agricultural Co-operative Society and that the  clerk  had  informed  that  the  Secretary  of  the Society was not available there and, so they returned to their house in the same bicycle. The prosecution examined one Bhaskaran (PW-6), Clerk of the said Bank.

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He  stated  that  on  the  date  of  occurrence, Gopalakrishnan did not visit the said Bank. We have also noticed that it was correctly found by the High Court that the cycle got punctured and Gopalakrishnan took another cycle from the nearby shop and proceeded to  his  house.  It  would  be  further  evident  that  the prosecution had produced M.O.11 and M.O.12 bicycles and according to PW-14, a Herojet Cycle was recovered from the  place  of  occurrence.  While  PW-13,  who  is  the Mahazar witness, deposed in the chief examination that only Hercules Cycle was recovered from the place of occurrence and not Herojet Cycle. It further appears from  the  evidence  of  PW-12  that  soon  after  the occurrence, she had placed the body of her husband on her lap. But, interestingly, no blood-stained sari was recovered from PW-12, which creates doubt as to the very presence of PW-12 at the time and place of the said occurrence.  

10. In these circumstances, we find that the High Court correctly noticed the said discrepancies which was also

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found out by the Trial Court and thereafter correctly came to the conclusion that the prosecution has failed to prove the guilt of the accused beyond any reasonable doubt.  

11. Decisions were cited at the Bar. In our opinion, in the facts and circumstances of the present case, it is not necessary to deal with each one of them. However, we have noticed in  Murugesan S/o Muthu and Ors. Vs. State through Inspector of Police, (2012) 10 SCC 383, wherein this Court has noted that the principles laid down  by  the  Privy  Council  in  Sheo  Swarup  v.  King Emperor, (1933-34) 61 IA 398 : AIR 1934 PC 227(2), have been followed by this Court in a series of subsequent pronouncements. Sheo Swarup v. King Emperor (supra) has also  been  considered  and  the  general  principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal, has been culled  out by  this Court  in  Chandrappa v.  State of Karnataka, (2007) 4 SCC 415, which are as follows:    

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(1) An appellate court has full power to  review,  re-appreciate  and  reconsider the  evidence  upon  which  the  order  of acquittal is founded.  

(2)  The  Code  of  Criminal  Procedure, 1973  puts  no  limitation,  restriction  or condition on exercise of such power and an appellate court on the evidence before it may  reach  its  own  conclusion,  both  on questions of fact and of law.  

(3)  Various  expressions,  such  as, "substantial  and  compelling  reasons", "good  and  sufficient  grounds",  "very strong  circumstances",  "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the  evidence  and  to  come  to  its  own conclusion.  

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence  is  available  to  him  under  the fundamental  principle  of  criminal jurisprudence that every person shall be presumed  to  be  innocent  unless  he  is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal,  the  presumption  of  his innocence  is  further  reinforced,

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reaffirmed and strengthened by the trial court.  

(5) If two reasonable conclusions are possible on the basis of the evidence on record,  the  appellate  court  should  not disturb the finding of acquittal recorded by the trial court.”  

12. Accordingly, we do not find any reason to interfere with  the  judgment  and  order  so  passed  by  the  High Court. Hence, these appeals are dismissed.  

….....….……………………J (Pinaki Chandra  Ghose)

….....…..…………………..J (Uday Umesh Lalit)

New Delhi; April 28, 2015.