REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL NO. 2085 OF 2008
Mookkiah & Anr. .... Appellant(s)
Versus
State, rep. by the Inspector of Police,
Tamil Nadu .... Respondent(s)
2
J U D G M E N T
P.Sathasivam,J.
1) This appeal has been preferred against the final judgment and order
dated 25.01.2007 passed by the Madurai Bench of the Madras High Court in
Criminal Appeal No. 1137 of 1998 whereby the Division Bench of the High
Court allowed the appeal filed by the State and set aside the order of
acquittal of appellants herein dated 24.08.1998 passed by the IInd
Additional Sessions Court, Tirunelveli in Sessions Case No. 264 of 1996.
2) The facts and circumstances giving rise to this appeal are as under:
(a) Uluppadi Parai is a small village in Ambasamudhram Taluk within
Kallidaikurichi Police Station. The appellants herein (A-1) and (A-2) and
the deceased were all the residents of the same hamlet situated in the
aforesaid village. The residents of that hamlet had a nearby place as open
air latrine which was situated near a water body.
(b) The deceased Ramaiah, in this case, was the son-in-law of Ramaiah (PW-
1), who also had the same name as that of the deceased. Parvathi-daughter
of PW-1, was married to the deceased-Ramaiah.
25 days prior to the
incident, when she was staying at the residence of PW-1,
the deceased-
Ramaiah solicited the wife of Subbiah (A-2) to have illicit intercourse
with him and A-2, after coming to know of such fact, harboured enmity in
his heart against the deceased.
The deceased was also having previous
enmity with Mookkiah (A-1), who was residing in the same village.
(c) On 12.05.1992, at about 5.30 a.m., when the deceased Ramaiah went to
the said open air latrine to attend to the calls of the nature, A-1 and A-
2, in furtherance of their common intention to murder Ramaiah, dealt blows
on him using aruval (billhooks), thereby killed him on the spot itself and
fled away from the scene.
However, on the very same day, at about 05:30
hours, when Ramaiah (PW-1), the father-in-law of the deceased, Sudalaimuthu (PW-5) and Shanmugam (PW-4) were returning after pouring water into their field, they heard the cries of Ramaiah, son-in-law of PW-1, shouting “Don’t attack, Don’t attack”.
They immediately rushed to the spot and saw that
the accused were attacking the deceased-Ramaiah on his head, neck, shoulder and back with their aruval and on seeing them, they fled away.
Ramaiah (PW-
1) and Sudalaimuthu (PW-5) both witnessed the ghastly crime and despite
they shouted at the assailants not to perpetrate the gruesome act, the
accused accomplished their task of murdering the accused.
(d) Thereupon, PW-1, PW-4, PW-5 and one Kanaka Raj, went to the
Kallidaikurichi P.S. and PW-1 lodged a complaint against both the accused
persons which was registered as Crime No. 173 of 1992 under Section 302 of
the Indian Penal Code, 1860 (in short ‘IPC’).
(e) After investigation, both the accused persons were arrested and charges
were framed against them under Section 302 read with Section 34 of IPC and
the case was committed to the Court of Session which was numbered as
Sessions Case No. 264 of 1996.
(f) By order dated 24.08.1998, the trial Court, after giving the benefit
of doubt, acquitted both the accused of the offences with which they were
charged. Being aggrieved by the judgment of acquittal, the State preferred
an appeal being Criminal Appeal No. 1137 of 1998 before the Madurai Bench
of the Madras High Court.
(g) The High Court, after examining all the materials, by order dated
25.01.2007, reversed the judgment of acquittal and found A-1 and A-2 guilty
of the offence under Section 302 read with Section 34 of IPC and sentenced
them to suffer rigorous imprisonment (RI) for life alongwith a fine of Rs.
5,000/- each, in default, to further undergo RI for 6 months.
(h) Being aggrieved by the impugned judgment of the High Court, A-1 and A-
2 (appellants herein) preferred an appeal before this Court under Article
136 of the Constitution of India.
3) Heard Mr. S. Nanda Kumar, learned counsel for the appellants-accused
and Mr. S. Gurukrishna Kumar, learned senior counsel and AAG for the
respondent-State.
Interference in Appeal against Acquittal:
4) It is not in dispute that the trial Court, on appreciation of oral
and documentary evidence led in by the prosecution and defence, acquitted
the accused in respect of the charges leveled against them. On appeal by
the State, the High Court, by impugned order, reversed the said decision
and convicted the accused under Section 302 read with Section 34 of IPC and
awarded RI for life. Since counsel for the appellants very much emphasized
that the High Court has exceeded its jurisdiction in upsetting the order of
acquittal into conviction, let us analyze the scope and power of the High
Court in an appeal filed against the order of acquittal This Court in a
series of decisions has repeatedly laid down that as the first appellate
court the High Court, even while dealing with an appeal against acquittal,
was also entitled, and obliged as well, to scan through and if need be re-
appreciate the entire evidence, though while choosing to interfere only the
court should find an absolute assurance of the guilt on the basis of the
evidence on record and not merely because the High Court could take one
more possible or a different view only. Except the above, where the matter
of the extent and depth of consideration of the appeal is concerned, no
distinctions or differences in approach are envisaged in dealing with an
appeal as such merely because one was against conviction or the other
against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others,
(2004) 5 SCC 573]
5) In State of Madhya Pradesh vs. Ramesh and Another, (2011) 4 SCC 786,
this Court, while considering the scope and interference in appeal against
acquittal held:
“15. We are fully alive of the fact that we are dealing with an appeal
against acquittal and in the absence of perversity in the said
judgment and order, interference by this Court exercising its
extraordinary jurisdiction, is not warranted. It is settled
proposition of law that the appellate court being the final court of
fact is fully competent to reappreciate, reconsider and review the
evidence and take its own decision. Law does not prescribe any
limitation, restriction or condition on exercise of such power and the
appellate court is free to arrive at its own conclusion keeping in
mind that acquittal provides for presumption in favour of the accused.
The presumption of innocence is available to the person and in
criminal jurisprudence every person is presumed to be innocent unless
he is proved guilty by the competent court and there can be no quarrel
to the said legal proposition that if two reasonable views are
possible on the basis of the evidence on record, the appellate court
should not disturb the findings of acquittal.”
6) In Minal Das and Others vs. State of Tripura, (2011) 9 SCC 479, while
reiterating the very same position, one of us, P. Sathasivam, J. held:
“14. There is no limitation on the part of the appellate court to
review the evidence upon which the order of acquittal is found and to
come to its own conclusion. The appellate court can also review the
conclusion arrived at by the trial court with respect to both facts
and law. While dealing with the appeal against acquittal preferred by
the State, it is the duty of the appellate court to marshal the entire
evidence on record and only by giving cogent and adequate reasons set
aside the judgment of acquittal. An order of acquittal is to be
interfered with only when there are “compelling and substantial
reasons” for doing so. If the order is “clearly unreasonable”, it is a
compelling reason for interference. When the trial court has ignored
the evidence or misread the material evidence or has ignored material
documents like dying declaration/report of ballistic experts, etc. the
appellate court is competent to reverse the decision of the trial
court depending on the materials placed.”
7) In Rohtash vs. State of Haryana, (2012) 6 SCC 589, this Court held:
“27. The High Court interfered with the order of acquittal recorded by
the trial court. The law of interfering with the judgment of acquittal
is well settled. It is to the effect that only in exceptional cases
where there are compelling circumstances and the judgment in appeal is
found to be perverse, the appellate court can interfere with the order
of the acquittal. The appellate court should bear in mind the
presumption of innocence of the accused and further that the trial
court’s acquittal bolsters the presumption of innocence. Interference
in a routine manner where the other view is possible should be
avoided, unless there are good reasons for interference. (Vide State
of Rajasthan v. Talevar, (2011) 11 SCC 666 and Govindaraju v. State,
(2012) 4 SCC 722)”
8) In a recent decision in Murugesan & Ors. vs. State Through Inspector
of Police, 2012 (10) SCC 383, one of us Ranjan Gogoi, J. elaborately
considered the broad principles of law governing the power of the High
Court under Section 378 of the Code of Criminal Procedure while hearing the
appeal against an order of acquittal passed by the trial Judge. After
adverting to the principles of law laid down in Sheo Swarup vs. King
Emperor, AIR 1934 PC 227 (2) and series of subsequent pronouncements in
para 21 summarized various principles as found in para 42 of Chandrappa &
Ors. vs. State of Karnataka, (2007) 4 SCC 415 as under:
“21. A concise statement of the law on the issue that had emerged
after over half a century of evolution since Sheo Swarup1 is to be
found in para 42 of the Report in Chandrappa v. State of Karnataka.
The same may, therefore, be usefully noticed below: (SCC p. 432)
“42. From the above decisions, in our considered view, the following
general principles regarding powers of the appellate court while
dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate 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.
[pic](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.”
(emphasis supplied)
9) With the above principles, let us analyze the reasoning and ultimate
conclusion of the High Court in interfering with the order of acquittal and
awarding imprisonment for life.
10) Among the materials placed and relied on by the prosecution,
complaint Exh.P-1, evidence of PWs 1, 2, 4 and 5 are relevant.
Complaint (Exh.P-1):
11) The complaint Exh. P-1 dated 12.05.1992 was made by Ramaiah (PW-1).
In the complaint, it was stated that as his daughter-Parvathi was pregnant,
she was brought to his house for delivery and a female child was born to
her 25 days back. After delivery, her daughter stayed in his house with
her child and his son-in-law Ramaiah stayed with his parents. It was
further stated that on 12.05.1992, in the early morning, about 05.30 hours,
when he was returning alongwith Sudalaimuthu and Shanmugam after pouring
water to the plantation, at that time, they heard the shouting of his son-
in-law “Don’t kill me”. On hearing the same, they rushed towards the spot
and noticed that Subbiah (A-2) was having a big aruval (bill hook) in his
hand and Mookkiah (A-1) was holding a small aruval and were attacking on
the face and back of Ramaiah-the deceased. When all the three went there
shouting “Don’t cut, Don’t cut”, at that time, Subbiah (A-2) and Mookkiah
(A-1) ran towards eastern direction. They noticed cut injuries on neck,
shoulder back and head of his son-in-law and blood was oozing from the cut
wounds. They also noticed that he was dead. Thereafter, all the three
persons informed Alagamuthu, father of Ramaiah and the Village Headman
about the same and later they along with others saw the dead body of
Ramaiah. It was further stated that approx. one week before, Subbiah (A-2)
met him and warned that his son-in-law Ramaiah called his (Subbiah’s) wife
Mukkammal for sex and he threatened that he won’t spare him and as per the
say, Subbiah and Mookkiah murdered his son-in-law Ramaiah. Thereafter, he
along with Sudalaimuthu, Shanmugam, Kanaka Raj came to Kallidaikurichi P.S.
at about 08.00 hours and informed the same which was recorded on 12.05.1992
at 08.06 hours and registered as Crime No. 173/1992 under Section 302 IPC.
A perusal of Exh. P-1 complaint discloses the full narration of the
incident by PW-1 and the persons accompanied him and motive for murdering
the deceased.
Evidence of PW-1:
12) Ramaiah (PW-1), who is none else than the father-in-law of the
deceased, even in his evidence has narrated before the court what he had
stated in the complaint (Exh. P-1). He also identified M.O. I and M.O.II
Aruvals (billhooks). He further stated that with M.O. I small aruval, the
accused Mookkiah was attacking and M.O. II-big aruval was used by accused
Subbiah. He also noticed a pair of chappals (M.O. III), underwear (M.O.
IV) near the corpse of his son-in-law. He also stated that it was he who
preferred complaint to the police. The same was recorded by the Police
Officer and attested by Kanaka Raj, Sudalaimuthu and Shanmugam. He also
explained the statement made by Subbiah (A-2) one week prior to the
incident warning him that his son-in-law called his wife for sex and he
won’t spare him for this. Even in lengthy cross-examination, he withstood
his stand and reiterated that he along with two others saw the accused
murdering his son-in-law. There is no reason to disbelieve his version.
Though the trial Court has rejected his evidence because of his
relationship, we are of the view that merely because a witness is related,
his evidence cannot be eschewed. On the other hand, it is the duty of the
Court to analyze his evidence cautiously and scrutinize the same with other
corroborative evidence. The High Court has rightly relied on his evidence
and we fully agree with the course adopted by the High Court in relying
upon his evidence.
Evidence of PW-4:
13) Though Shanmugam (PW-4) turned hostile at one stage, there is no
reason to reject his entire evidence as unacceptable. It was he who
accompanied PW-1 at the early hours and noticed that the accused were
attacking the deceased by use of bill hooks. Similar to PW-1 and PW-5, PW-
4 reiterated that he accompanied them after pouring water to their banana
fields. Even though he did not support the prosecution case in its
entirety, his version strengthen the evidence of PW-1 and PW-5.
Evidence of PW-5:
14) Sudalaimuthu (PW-5) is a resident of Ulappadi Parai. In his
evidence, he has stated that 6 years back, on Chithirai month night, at
about 8.00 p.m., when he was proceeding to banana thope to pass water, he
noticed Ramaiah (PW-1) and Shanmugam (PW-4) were also passing water. After
completing the work at the early morning, roughly 05.30 hours, while
returning back along with PW-1 and PW-4, he heard a noise from the Southern
side Ridge, namely, “Don’t cut, Don’t cut”. On hearing the sound, all the
three rushed to that place and noticed that Subbiah (A-2) and Mookkiah (A-
1) were cutting the deceased Ramaiah. He further stated that on seeing
them the accused ran away from the spot and they found that Ramaiah was
done to death. They reported the incident to Nattammai Kanak Raj in the
village and, thereafter, went to the P.S. around 08.00 o’clock and Ramaiah
(PW-1) gave a statement to the police. In the said statement, viz., Exh. P-
1, he also signed as a witness. He identified his signature in Ex.P-1. He
was also present when the police inspected the scene of occurrence and
during the course of inquest. In the cross-examination, he reiterated what
he had stated in the Chief-Examination.
15) A perusal of the evidence of PW-5 clearly shows that it corroborates
with the statement made by PW-1 in all aspects. It also shows that PWs 1,
4 and 5 went to their banana fields to pour water during the said night and
while returning back after finishing the work at around 5.30 a.m., they
noticed the accused causing fatal injuries on the deceased by use of
aruvals (billhooks). It also shows that all of them went to the P.S. and
PW-1 made a complaint and other two attested the contents of Exh.P-1. The
High Court has rightly relied on the evidence of PWs 1 and 5 and on going
through their entire statement, we fully agree with the course adopted by
the High Court.
Evidence of PW-2:
16) Dr. Tmt. Bhanumathi, (PW-2) who conducted post mortem on the dead
body of the deceased Ramaiah was examined as PW-2. The post mortem report
has been marked as Exh. P-3. In Exh.P-3, the doctor has noted the
following injuries:
“Injuries:
(1) An incised wound extending from lower part of right cheek, above
mandible, directed downwards to the middle of back of neck; obliquely
placed and of sixe 14X6X6 cms. Blood vessels, muscles, C3, C4,
vertebra cut, head partially hanging and blood clots present.
(2) An incised wound on centre of forehead close to midline extending
to middle of scalp vertical in direction directed upwards and
backwards size 14X4X6 cms. Underlying bone cut and brain matter coming
out through the wound.
(3) An incised wound extending from middle of right side of back to
right side of shoulder of size 20X6X6 cms. Oblique in direction,
overlapping cut injuries on inferur border of wound, muscles, blood
vessels cut, blood clots present. Right scapula injured and
dislocated.
(4) An incised wound on right side of lower part of back below injury
no.3, oblique in direction 12X4X2 cms. Blood vessels, muscles cut and
blood clots present.
(5) An incised wound horizontal in direction 18X6X8 cms. Extending
from left lower part of back of left waist fort side.
(6) An incised wound above injury no.5 oblique in direction on left
side of lower part of back to right side crossing spine 12X6X4 cms.
Blood vessels, muscles cut in the same direction.
(7) An incised wound on upper third of upper arm right, on lateral
side extending to back of 12 X 4 shoulder, oblique in direction, blood
vessels, muscles cut.
(8) An incised would on right upper arm, upper third on medical
aspect, skin depth 5 X 2 cms. obliquely placed.”
17) As rightly pointed out by the State counsel, the cut injuries
observed by the doctor tally with the narration given by PW-1 in Exh.P-1 as
well as in his evidence and the evidence of PW-5. The doctor also opined
that the death of the deceased might have occurred 28-30 hours prior to the
post mortem. It is not in dispute that the doctor commenced the post
mortem on 13.05.1992 at 10.30 hours and as per the prosecution case, the
death of the deceased occurred at 05.30 a.m. on 12.05.1992. A perusal of
these details clearly show that the opinion given by the doctor tallies
with the prosecution version that the death might have occurred 28-30 hours
prior to the post mortem. The trial Court, taking note of the evidence of
PW-2 that there were around 300 grams semi digested food particles (rice) in the stomach of the deceased, disbelieved the time of occurrence as projected by the prosecution. It is true that PW-2, while deposing before
the Court, answered in the cross-examination that the death might have
occurred 34 hours prior to her performing the post mortem and the partly
undigested rice would show that rice might have been consumed by the
deceased 2-3 hours before his death. However, the Investigation Officer
(PW-11), during the cross-examination, highlighted that during the course
of his investigation, he ascertained from the father of the deceased that
the deceased consumed food at 11.00 p.m. during the said intervening night.
As rightly observed by the High court, since the parties are hailing from
a remote village, the villagers might take food even at odd hours after
finishing certain work in their fields and it cannot be precisely predict
based on the undigested food particles alone. The High Court has adverted
to Modi’s Medical Jurisprudence and Toxicology, 22nd Edition and after
noting all the relevant details has rightly concluded that the observation
of the doctor relating to the injuries and her general opinion at the time
of death which occurred 28-30 hours tally with the narration of eye-
witnesses and concluded that in such a case mere inference of the doctor
with reference to undigested food particles could not threw the prosecution
case. We fully agree with the discussion and the ultimate conclusion on
this aspect by the High Court. The evidence of PWs 1 and 5 coupled with
the version in Exh.P-1 would state that the occurrence took place at 5.30
a.m. while the deceased was passing stool, as such, the timings mentioned
by the doctor, occurrence and other witnesses tally with the narration.
Accordingly, we reject the contention raised by the counsel for the
appellants with reference to existence of undigested particles n the post
mortem by PW-2.
Other objections:
18) Though an argument was advanced that there was delay in filing the
FIR in the Court of the Magistrate, a perusal of the details placed by the
prosecution show that the occurrence took place at 05.30 a.m. on 12.05.1992
and the FIR was registered on the same day at 08.00 hrs. and the Magistrate
received the FIR on the same day at 02.00 p.m. As rightly observed by the
High Court, it cannot be presumed that there was inordinate delay in
reaching the FIR to the Magistrate Court. Further, it has come in evidence
that Kallidaikurichi P.S. is situated at a distance which could be covered
by cycle in 45 minutes and Abdul Rahman (PW-9), Police Constable Grade-I,
who was attached with Kallidaikurichi P.S. at the relevant time has
explained in his evidence that he took the complaint (Exh.P-1) and the FIR
to the Magistrate Court and reached at around 10.00 or 10.15 a.m. but by
that time Magistrate Court’s sitting was commenced. PW-9 further explained
that when he approached the Head Clerk, he informed PW-9 to hand it over to
the Magistrate after the sitting hour was over as it happened to be an
express FIR. There is no reason to disbelieve the version of the Police
Constable (PW-9) and we hold that absolutely, there is no delay at all in
either registering the FIR or dispatching the same to the Magistrate Court.
19) We have already noticed the motive as spoken to by PW-1 both in his
evidence as well as in Exh.P-1. It was pointed out that no blood stains
were noticed in the M.Os I, II and III, namely, aruvals (bill hooks) and
dress in the FSL report. It was explained that since these objects were
lying on the earth and by efflux of time, no blood was found by the
laboratory because of which the same cannot be doubted when the same were
duly recovered in the presence of witnesses.
20) In the light of the above discussion, we are satisfied that the trial
Court failed to take note of relevant aspects and committed a grave error
in rejecting the reliable materials placed by the prosecution. The High
Court as appellate court, analyzed the evidence as provided in Section 378
of the Code and rightly reversed the order of acquittal and found A-1 and A-
2 guilty of offence under Section 302 read with Section 34 IPC for
murdering Ramaiah in pursuance of their common intention and awarded
sentence of life imprisonment. We fully agree with the said conclusion.
21) Consequently, the appeal fails and the same is dismissed.
………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(RANJAN GOGOI)
NEW DELHI;
JANUARY 04, 2013.
-----------------------
19
