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.
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.
