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Thursday, April 30, 2015

which creates doubt as to the very presence = 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.

                                                              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.

   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 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 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.

   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.

   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), 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,  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 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. 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 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:

                 (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, 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.

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