Murugan vs Beer Mohammed and Others

Raman, J.—This Revision is preferred by P.W.1 Complaint against the judgment of the Principal Sessions Judge, Chengalpattu rendered in S.C. 16/92 acquitting the accused. Briefly stated the prosecution case is that on 26.3.1991 at about 10.00 P.M. at Padiannallur, No. 195d/e, 11th street, Jothi Nagar, in front of the house of deceased Narayanan the accused with common intention of committing murder of Narayanan armed themselves with formed themselves into unlawful assembly, committed criminal trespass into the house of Narayanan and that in the course of transaction the first accused hit Narayanan on the back of his head with causing the death of Narayanan and that and the second accused attacked witness Murugan with and caused injury and that accused 4 and 5 caused injuries to Adaikalam with and that the accused 6 and / caused injuries to Manickamal with and that the 3rd accused caused injuries to witness Pandian and as such the accused are guilty u/s 148, 149, 302 r/w 149, 324 r/w 149, and 323 r/w 149 of I.P.C. On those allegations, the charge sheet was filed before the Judicial Magistrate, Ponneri. The Judicial Magistrate Ponneri took the case on file in PRC. 14/91 and after furnishing copies to the accused u/s 207 Code of Criminal Procedure committed the accused to take trial before the Sessions Court. The case was taken on file by the Sessions Court in S.C. 16/92 and the first accused was charged u/s 302 and accused 2 to 7 u/s 302 r/w. 149 and accused 4 and 5 u/s 324 accused 6 and 7 u/s 324 and the 3rd accused u/s 323. the prosecution examined 16 witnesses. Exs.P.1 to P.23 and M.Os 1 to 5 were marked on the side of the prosecution. The accused did not examine any witnesses nor any document was exhibited on their side. The learned Sessions Judge held that the offences have not been made out and acquitted the accused. Aggrieved by the same P.W.1 Murugan has preferred this Revision.

The learned Counsel for the Revision Petitioner placed before this Court four main points to contend that the lower court has omitted to take note of these important points which has resulted in miscarriage of justice and therefore it is a fit case for remand.

The lower Court Viz., the Sessions Judge, Chengai MGR. District has chosen to take up for consideration only certain aspects and on the basis of a cursory discussion on those aspects has chosen to acquit the accused. In a way it can be said that such a negative approach has vitiated the judgment of the lower Court as it has impaired materially the perspective of appreciation of evidence. We find that the witnesses examined on the side of the prosecution speak to the manner in which the attack was made and who attacked the deceased and where the occurrence took place. Immediately after the occurrence, the injured has been taken to private hospital and then to Government Hospital and from where getting information about the same the Sub-Inspector of police goes and records the statement of P.W.1 at the Hospital. P.W.6, Murugappa, the Doctor who has been examined has stated that on 26.3.1991 an injured person was brought to him by some persons and there was injury on his head and he was informed that the injury was caused by certain persons by hitting him with

He advised them to go to Stanely Hospital because it was medico-legal case. P.W-9 dr. Dinakaran has stated that Narayanan was admitted in the Hospital on 26.3.1991 and died in the Hospital at 3.45 a.m. on 27.3.1991 P.W.10 Dr. Mrs. Sulochana stated that she conducted autopsy on the body of Narayanan on 27.3.1991 and found that on his left side of his head an injury measuring 15x13x2 cm., and a contusion on the back occipital region of the neck measuring 4x2x1 cm., and that when she opened the skull she found that there was a fracture of the left parietal bone with blood clots in the brain and that the bone C.4 and C.5 on the neck were also found fractured and the corresponding part of the spinal cord was also injured. P.W.12 Dr. Vasanthakumar has deposed that on 26.3.1991 at about 11.15 p.m. one Narayanan was brought before him by one Muthukumar and that it was informed that 5 male persons attacked him on 26.3.1991 at about 10.15 P.M., at Jothi Nagar with ''thadi''.

Learned Counsel for the Revision Petitioner referred to the testimonies of these doctors and the wound certificate and the postmortem certificate to contend that the prosecution has proved that the injuries were caused in the time and manner alleged by the prosecution and these aspects have been ignored by the lower Court. It is true that the lower Court has not adverted to these aspects to see if the medical evidences supports the case of the prosecution. It is also to be pointed out that the deceased was admitted in the hospital in a conscious state. He himself had stated that he was attacked by 5 males on 26.3.1991 at about 10.15 P.M. at Jothi Nagar. These important aspects, of course, have not at all been considered by the lower Court.

It is further contended by the learned Counsel for the Revision Petitioner that the lower Court erred in holding that the motive alleged has not been proved. The case of the prosecution is that the first accused is a butcher and is running a meat shop at Red Hills. The observation mahazar and the evidence of P.W.1 to P.W.5 would establish that the house of the first accused is situated by the side of the house of deceased Narayanan. It is also proved that there is a well in the house of Narayanan. The evidence of the prosecution witnesses is that since the accused is running the meat shop he used to cut and collect the meat beef in the open portion in front of the house of P.W.1 and that he never used to remove the pieces of flesh and bones that, as a result, the place became unhygenic and that stray dogs and crows used to carry those pieces left and drop it in the house of the Prosecution witnesses and in the well and as a result bad odour pervaded the place and that water and the well became unfit for human consumption; that in spite of their request and protest the first accused was carrying on like that and therefore they made complaint to the Health Officer and the the Health Officer came and inspected and warned the first accused and therefore the first accused had a grievance and was embittered by the act of complaint made by the P.W.1 and thus there was motive for the occurrence. The juxtaposition of the houses of the first accused and the P.W.1, the fact that there was a open space as alleged by the prosecution, the fact that there is well, are pieces of evidence which ought not to have been overlooked. That the first accused is running a meat shop and he is a butcher by profession is also not disputed. In fact it is admitted that the Health Officer of the Panchayat came and inspected the place on the complaint of P.W.1. Of course it is stated by Health Officer he inspected the place and did not find any pieces of flesh or bone lying about as alleged in the complaint. But the fact is that there was a complaint against the first accused. The further fact is that on that complaint the Health Officer inspected the place. Therefore coupled with the topographical features and these facts it is clear that there is basis for the first accused to be inimical towards P.W.1''s family and that there is motive for the first accused. It may be that the Health Officer did not see any evidence of truth of the allegation made in the complaint of the P.W.1 but the fact that the complaint was so made and an inspection was so done is sufficient to show that there was nurturing of animosity and on account of the same the first accused had motive. This aspect has not been properly appreciated by the lower Court.

The next aspect is the immediate provocation for the occurrence. The case of the prosecution is this. The witnesses examined on the side of the Prosecution depose in a collision that on the previous day the marriage of Narayanan, the deceased was celebrated. Number of guests had come to attend the marriage. To entertain the guests P.W.1 Murugan wanted to arrange for exhibition of films on video for which he had obtained a deck and to get electrical energy on 26.3.1991 he went to the house of Annalakshmi which is about two plots away. Annalakshmi refused to permit drawal of energy from her house and therefore P.W.1 coiled back the wire taken by him and was returning home and while he was passing through the vacant plot of the first accused and at that time the first accused stating "how dare you take wire over and through my plot?" and saying so, caught hold of him by nape of neck and pushed him down. This aspect of the case when he went to the house of Annalakshmi to get supply of energy for exhibiting films on video is spoken to by the other witnesses and as also by Annalakshmi. The printed FIR relating to the complaint given by the first accused has been marked as Ex.P.21. This complaint is said to have been lodged at about 00.50. hours on 26.3.1991 i.e., on the night of 26.3.1991 and early morning of 27.3.1991. In this complaint it is stated that P.W.1 at about 10.00 P.M. came to his house and without consulting him from the lamp post at his house, attempted to draw energy and that he objected to the same and at that time P.W.1 along with 5 others attacked him. Therefore, in the context of drawing energy on the night of 26.3.1991 that a quarrel arose between P.W.1 and the accused is proved by the complaint given by the accused. Thus the incident which proved to be the immediate cause for provocation is not only spoken to by the prosecution witnesses but also by the complaint of the accused. This important aspect has not been taken note of at all by the lower Court. Thus we find that already a complaint has been given by P.W.1 against the first accused that he is using the vacant portion of his property to cut and collect beef and mutton and as a result the environment is spoiled and the crows and other animals pick up the pieces of flesh and bone and drop them in the open portions of the house of P.W.1 and in the well thereby spoiling the atmosphere and making the well unsuitable for human use. On this complaint the Health Officer had also inspected. Thus the first accused is aggrieved because of the complaint. Immediately thereafter we find that P.W.1 has tried to take energy from the house of Annalakshmi and on her refusal, was returning with his wire and was passing through the side of the first accused when an occurrence took place. Thus these two important factors have not been taken note at all by the lower Court.

The lower court has discussed the case and has chosen to throw away the case of the Prosecution only for the reason that the accused have been injured and the prosecution has not explained the injuries. In this regard, the trial court has not chosen to go through the evidence carefully. P.W.1 says that the first accused kicked his father on his hip and that when he again tried to kick, he kicked the leg of Peer Mohamed and Peer Mohammed fell down and this is spoken to by other witnesses. The first accused was examined by the Doctor. P.W.12 Dr. Vasanthakumar has found only abrasion measuring 1 1/2 inchx1/4 inch on the right forehead. He did not note or see any other injury. Therefore there is explanation for the injury sustained by the first accused. As regards the 4th accused Selvaraj, the evidence of P.W.7 Dr. Shankarlal is that he examined him only on 29.3.1991. Moreover before the Doctor he has stated that he was attacked by an unknown person on 26.3.1991 near his house. Further the complaint given by the first accused is that he was attacked near his house. But Accused-4 says to the Doctor that he was attacked near his house by an unknown person and he found sutured wound. The complaint of Accused-1 does not show that other accused were all present and were also injured in that occurrence. Thus the accused were not injured nor proved to be injured. Therefore as regards the first accused the evidence of P.W.1 to P.W.4 is that P.W.1 tripped the leg of the first accused when he attempted to kick his father and the first accused fell down. Therefore it is quite possible that the injury which is only a bruise could have been caused on account of the falling. Thus it is explained. The other injuries are only complaints of pain which cannot be verified. As regards the 4th accused he was examined only on 29.3.1991 and he did not say that he was attacked by number of persons, but only one person and near his house. The complaint given by Accused-1 does not support this theory. Therefore the injuries alleged to have been sustained by the 4th accused cannot be said to have been sustained by him in the course of the same transaction. As regards the other accused there are no injuries. The lower court has thus failed to take note of these important circumstances. It has concluded that the Prosecution miserably failed to prove that the injuries found on P.W.1 and 4 were caused by Accused-1 and the injuries found on accused have not been properly explained. It is to be pointed out that in Ex.P.21, the F.I.R. which has been registered on the complaint of the first accused, it is only stated that he was hit by Murugan and others. He does not make any mention that the 4th accused was also present there and he was also attacked.

The learned Sessions Judge has also chosen to consider the aspect of light. Though the Prosecution has enlightened the Sessions Judge on this aspect. The Sessions Judge appears to have been moving about in the darkness of confusion. It is spoken to by the Prosecution witnesses in an uniform manner that on 25.3.1991 Narayanan viz., the deceased married his sister''s daughter Annalakshmi. It is also stated that there was a reception at the house and arrangement was made to have electric lights and petromax lights. It is also stated that there was enough light i.e., to watch the occurrence. The prosecution witnesses have all spoken to that there was sufficient light. The rough sketch filed and marked on Ex.1.17 shows that there is an electric post nearby viz., near the scene of occurrence. Ex.P.2 is the observation mahazar. It is stated in the observation mahazar that a pandal has been put up and it is decorated and electrical lights and petromax lights were burning at the time of the visit by the investigating officer. The observation mahazar also speaks to the existence of lamp post nearby. When there is evidence, it is not known on what basis the Sessions Judge has held that none of the witnesses have stated that there was light in the place of occurrence and they saw the occurrence in that light. This only shows that the Sessions Judge has not cared to go through the evidence. P.W.1 has stated clearly as follows:

This evidence of P.W.1 has not been controverted by any suggestion in the course of cross examination. He has denied the suggestion in the course of cross examination that it was dark at the time of occurrence. He has stated in the course of cross examination.

The marriage had taken place just on that morning and the marriage was celebrated in the house of the deceased Narayanan where P.W.1 was also residing. Therefore there ought to have been sufficient number of lights in view of the occasion. These aspects have been thoroughly ignored by the lower Court. It is not known on what basis the lower Court has stated that none of the witnesses have stated that they saw the occurrence in the light. On the other hand P.W.1 has specifically given his answer in the course of cross examination. The observation mahazar speaks to the same, coupled with the fact that only on the previous day the marriage function had taken place in the house. There cannot be any doubt on that aspect. Therefore on an analysis, I am satisfied that there is an utter lack of appreciation on the part of the lower Court. What has been stated by the witnesses is not taken note of by the lower Court. Whereas what the witnesses have not stated is taken as the basis. The existence of enmity, the incident that proved to be the immediate provocation, the corroboration of medical evidence and the fact that there was no delay in filing the complaint are the only important circumstances that ought to have been considered by the lower Court. The evidence of prosecution witnesses as to how the occurrence took place and how the deceased was attacked and injured and by whom has to be tested in the background of the above important circumstances. These circumstances which have a great bearing have been thoroughly ignored by the lower Court. The lower Court has closed its eye to them and has indulged in a negative approach. The mere fact that the first accused has given a complaint is not conclusive. It speaks to an occurrence at about the time and place, the presence of accused and the injuries are thus admitted. The complaint has been subsequently given and registered. That it could have been given as a counterblast. The trial Court ought to have considered whether that complaint has kindled the suspicions of the Court so intensively to ignore the important circumstances pointed out already. There is no proper discussion of the case. The trial Court has chosen to give importance to trivialities ignoring significant circumstances, while there is no positive approach, there is considerable paucity of appreciation.

No doubt this Court has not such power as it has is while disposing of a appeal against acquittal by the State. This is only a Revision by the complainant against the order of acquitted. Therefore certain limitations are imposed while dealing with Revisions of this nature. That does not mean that the Court has no power at all or that it is thoroughly bound and fettered. It is not shocked. When justice is the victim the procedural law has to take the backseat allowing the Court to do what is right to uphold justice. Injustice cannot be allowed to be perpetrated in the guise of restricted powers of Revision. The hands of the Court cannot be shackled. Nor the Court can be made to sit as an innocent spectator, where there is gross miscarriage of justice. In this case on hand the approach by die lower Court is not fair and free. Important aspects and circumstances have been omitted to be considered. A matter which is not of importance has been considered as a matter of most significance. An unbiassed appreciation of evidence is not there. Certain admitted facts are ignored. A careful approach to the evidence is not made. The Courts have held that where the approach of the Court is palpably wrong, where the appreciation is thoroughly lacking, where an erroneous appreciation and approach has led to a miscarriage of justice, the Court can interfere to uphold justice. An analysis of the judgment of the lower Court leaves an indelible impression that there is utter absence of appreciation and a blatant erroneous approach. A lopsided view of the matter has warped the appreciation resulting in miscarriage of justice. The man who was married on the previous day was felled that night. In such a matter the trial Court has chosen to adopt rather an unrealistic attitude and as an unsympathetic spectator and has chosen to adopt a standard of appreciation which has no uniformity. The suggestions made to the Prosecution witnesses have been elevated to the status of proof when there are absolutely no reasons to eschew the gist of their evidence. In the above circumstances it is but incumbent to remand the case for fresh trial. A judicial approach, a free and fair discussion, and careful application of mind are all wanting in this case. As a result of that a grave miscarriage of justice has resulted. The approach and the view of the lower Court appears to be so obviously wrong and erroneous. It is but an inevitable case for interference with the order by exercising the Revisional powers of this Court. In fine, I hold that the judgment of the lower Court is vitiated not only by an erroneous approach, but also by a thorough lack of appreciation and non-application of mind. In this view of the matter it has become, therefore, necessary to set-aside the judgment of the lower Court and remand the matter for fresh disposal in accordance with law.

In fine, this Revision is allowed. The judgment of the lower Court is hereby set aside. The matter is remanded back to the lower Court for fresh disposal in accordance with law. The accused shall appear before court as and when required by the lower Court.