State, by Public Prosecutor vs Muthu and Another

M. Karpagavinayagam, J.—This appeal by the State through Public Prosecutor is directed against the judgment in S.C. No. 77 of 1984, on

the file of the First Additional Sessions Judge, Madurai, acquitting the Respondents/accused 1 and 2, in respect of the offence u/s 302 read with

Section 34 of Indian Penal Code.

The indictment against the respondents/accused 1 and 2 is that the first accused Muthu and the second accused Pandi, on 19-10-1983 at about

12.30 P.M., near Bombay wine shop, situate at Pachai Nachiamman Koil Street, Dindigul Road, Madurai, stabbed on the deceased Valli, by

M.O.I knife and M.O.2 pitchuva knife, indiscriminately, and caused her death.

3.(a). The facts in brief are as follows:

P.W.8 Murugeswari is the daughter of the deceased Valli. P.W.9 Amma Ponnu, a neighbour, was residing in the house belonging to the deceased

Valli? The deceased Valli and P.W.8 Murugeswari were the residents of Door. No. 16, Second Cross Street, Pazhanganatham,

Thandalkarampatti, Madurai. The first accused Muthu, his sister one Shanmugavelammal and the second accused Pandi were the residents of First

Cross Street, Thandalkarampatti, Madurai. The 2nd accused Pandi is the friend of 1st accused Muthu.

(b) On 18.10.1983, i.e., one day prior to the occurrence, the deceased Valli, her daughter P.W.8 Murugeswari and P.W.9 Amma Ponnu, the

neighbour, went together to see a matinee show of a Tamil feature film ""Niram Maaratha Pookkal"", in Jagatha Theatre at Pazhanganatham,

Madurai.

(c) Shanmugavelammal, the sister of A-1 Muthu also came to the said theatre and was sitting behind the seat of the deceased. After the interval,

Shanmugavelammal spit on the floor of the theatre, which unfortunately fell on the deceased Valli. She questioned the same, and so, there was a

wordy quarrel ensued between them, which resulted in exchange of blows. Both the deceased Valli and the said Shanmugavelammal caught hold

of the tuft and spit against each other. P.W.9 Amma Ponnu and Ors. who were sitting nearby in the theatre, intervened and separated them. Then

the deceased Valli, P.W.8 Murugeswari and P.W.9 Amma Ponnu left the theatre even before the show was over and returned home.

(d) At about 8.30 P.M., on the same date, i.e., 18-10-1983, the said Shanmugavelammal, and her brother, the first accused Muthu, along with

some others came to the house of the deceased Valli, and began to abuse her by standing in front of her house, regarding the incident that took

place in the theatre during the matinee show. Deceased Valli came out of her house and retaliated by shouting at them.

(e) P.W.11 Boomibalan, who was residing just opposite to house of the deceased Valli, on hearing the hell of noise, came out of his house and

found both the deceased Valli on one side and the members of Shanmugavelammal''s part on the other side indulged in the process of abusing each

other. Since he felt that the wordy quarrel would end in ugly scene, he immediately intervened and separated them. Thereafter Shanmugavelammal

and her party had left that place. These two incidents, viz, one at the cinema theatre and another in front of the house of the deceased were the

prelude and immediate motive for the main occurrence, that took place on the next day at about 12.30 P.M., in the main bazaar at Dindigul road.

(f) Two days prior to the occurrence, the deceased Valli purchased three sarees for Deepavali festival. Out of these, one saree was not liked by

the deceased, and therefore, she took that saree in M.O. 12 Yellow bag, and left for the Jowli shop for exchange. That was how the deceased

Valli had to come to Pachai Nachi Amman Kovil Street, Dindigul Road, Madurai, on the way to the said jowli shop. It was at about 12.30 P.M.,

on 19-10-1983, she was proceeding with M.O.12 Yellow bag containing M.O. 13, a new saree. She was just walking along the road towards the

northern side, near Bombay wine shop. It is a main bazaar, where there are several shops like fruit stalls, tea shops etc. The area was also a

crowded one.

(g) P.W.I Balakrishnan, P.C. No. 2285, P.W.4 Ponnusamy, P.C. No. 1021, P.W.5 Nagaiyasamy, P.C. No. 1933 and P.W.6 Ahamed Ghani,

P.C. No. 1776 are all attached to B. 10 Police Station (Law and Order), Madurai, which is the police station having jurisdiction over the place of

occurrence.

(h) There was an agitation by the Handloom Weavers at Madurai for nearly one week. On 19.10.1983, all the above Constables along with some

other Police Constables were engaged in waiting duty at the Police station from 700 A.M.to 12.00 Noon. They were permitted to go out for lunch

between 12 00 Noon and 1 30 P M, after making Ex.D2 entry in Ex.D3 General diary. Therefore, the police constables P.W.s. 1,4 to 6 left the

police station in mufti and proceeded towards one Saratha Mess situate at Town Hall Road, Madurai, near the place of occurrence. After crossing

the Dindigul road, these witnesses turned northern side towards Pachai Nachi Amman Kovil Street, to go to Saratha mess.

(i) In front of them, the deceased Valli was found walking towards the northern side, just opposite to Bombay wine shop. Behind the deceased

Valli just 2 1/2 feet away, the first accused Muthu and the second accused Pandi were also walking along the road.

(j) Suddenly the first accused Muthu went ahead of the deceased, restrained her and asked thus:

The English version of the above is as follows:

You are the person who spit on the face of my elder sister yesterday at the Cinema theatre and insulted her by pulling her tuft and beating her? I

will not leave without killing you!"".

So saying the first accused Muthu began to stab the deceased Valli with M.O.1 knife, carried in his hand, on her left chest, back and thigh.

Simultaneously the second accused Pandi, who came behind her, also stabbed her with M.O.2 pitchuva knife on her abdomen, back and left

buttocks indiscriminately. The victim Valli, on receipt of these injuries in the sudden attack, dropped the bag M.O.12 at the road itself, and ran

upto the Bombay wine shop situate nearby and fell down at the entrance steps of the said wine shop.

(k) On seeing the gruesome incident, which took place in broad- day light at the main bazaar, P. Ws. 1,4 to 6; the Police Constables, rushed

towards the accused and tried to catch them. Both the accused brandished those weapons at the police constables and intimidated that they would

stab them also if they come near to them. At the time, the public and the persons found in the shops, got frightened and ran away helter-skelter.

However, P.W.3 Raman Pillai, a rickshaw driver, working in Vaigai Lodge, situate next to Bombay wine shop, who happened to stand in front of

the lodge, helped the police constables in catching the accused red-handed with blood stained weapons, carried in their hands, viz, M. Os. 1 and 2

and snatching the weapons from the accused.

(l) Since the condition of the victim Valli, who was found lying at the entrance of the Bombay wine shop, was so critical, P.W.5 Nagaiyasamy P.C.

No. 1933, and P.W.6 Ahamed Ghani P.C. No. 1776, immediately engaged an auto-rickshaw, took the victim and rushed up to the Government

Rajaji Hospital, Madurai.

(m) P.W.1 Balakrishnan, P.C. No. 2285 and P.W.4 Ponnusamy P.C. No. 1021, took the accused along with M. Os. 1 and 2 in another to B-10

Police Station. P.W. 13 Hariharan, Sub-Inspector of Police, was on duty at the said Police Station. P.W.1 and P.W.4 produced the accused and

the weapons before the Sub-Inspector- P.W. 13. P.W.1 gave a report narrating the events to P.W. 13. This report Ex.P. 1 was attested by

P.W.3 Raman Pillai and P.W.4 Ponnusamy P.C. No. 1021. This was at about 12.45 P.M. Then P.W.13-Sub-Inspector of Police registered the

case in Cr. No. 1398 of 1983 against the accused 1 and 2, for the offence u/s 307 of Indian Penal Code. He prepared the printed First

Information Report Ex.P9. He also seized M. Os. 1 and 2 weapons, produced by P.W.1 under Form No. 19

(n) P.W. 13, Sub-Inspector of Police, on getting the particulars about the address of the victim from the accused, sent P.W. 12 Arumugham,

Police Constable No. 1980, to the house of the victim at Pazhanganatham, Madurai, to give information about the incident and her being taken to

the Government Rajaji Hospital, Madurai.

(o) At about 100 P.M., on 19-10-1983, P.W.5 Nagaiyasamy, P.C. No. 1933 and P.W.6 Ahamed Ghani, P.C. No. 1776, brought the victim

Valli to Government Rajaji Hospital, Madurai, and produced her before the Doctor-P.W.2., P.W.5, the Police Constable, on instruction from

P.W.13 Sub-Inspector received through telephone from the out-post Police Station, at Government Rajaji Hospital, Madurai prepared Ex.Dl

memo, and handed over the same to P.W.2 Doctor. On examination of the victims, P.W.2 Doctor found her dead. Immediately, P.W.5 Police

Constable No. 1933, again contacted P.W. 13, Sub-Inspector of Police through telephone from the out-post Police Station at Government Rajaji

Hospital, Madurai, and intimated about the death of the deceased. P.W. 13 Sub-Inspector of Police, then altered the case into one u/s 302 of

Indian Penal Code, and sent the express report, Ex. P10 to the Court as well as to his superior officers through P.W.4- Police Constable No.

1021, at 1.30 P.M., on the date of occurrence.

(p) P.W.15-Navaneethakrishnan, Inspector of Police, on receipt of the said message, came to the police station and received the report and took

up the investigation. At 2.30 P.M. the first and second accused, who were at the Police Station, were interrogated by P.W.15, Inspector of

Police, and were arrested and then sent for remand.

(q) At 3.00 P.M., P.W.15 -Inspector of Police, came to the spot. He prepared Ex.P2 observation mahazar and rough sketch Ex.P13. Ex.P2 was

attested by P.W.7-Namasivayam and another. Then, M. Os. 7 to10, the blood stained thereof, through which blood clots found on the show case,

floor, second and first steps of the entrance of Bombay Wine shop were collected by P.W.15., M.O.11 Blood stained two 10 paise coins was

seized from the second entrance step of the wine shop. M.O.12 yellow bag was recovered from the road. M.O.13 new saree found inside the bag

M.O.12, M.O.14 a small bag, M.O.15 four ten rupee notes, M.O.16 one five rupee note and M.O.17 Bill were also recovered along with M.

Os.7 to 12, under Ex.P.3 mahazar.

(r) At 4.00 P.M. the date of occurrence, P.W. 15--Inspector of Police, left the scene of occurrence and reached the Rajaji Government Hospital,

Madurai. Between 4 30 P M and 7 00 P M, P.W.15 held inquest on the dead body, in the presence of the Panchayatdars and examined P.W.1 -

Balakrishnan, Police Constable No. 2285, P.W.3 - Raman Pillai, P.W.4 - Ponnusamy, Police Constable No. 1021, P.W.5 Nagaiyasamy, Police

Constable No. 1933, P.W.6 Ahamed Ghani, Police Constable No. 1776, P.W.8 Murugeswari, daughter of the deceased and others. Ex. P. 14 is

the inquest report. Then P.W.15 arranged to send the body through P.W.6 - Ahamed Ghani, Police Constable No. 1776 for post-mortem, along

with Ex. P. 11 requisition.

(s) P.W.6 - Ahamed Ghani, on 20.10.1983 at 10.00 A.M. handed over the requisition for postmortem Ex.P.11 to P.W.14 Dr. Baskaran, who

conducted the postmortem at 10.10 A.M. he found the following injuries on the deceased Valli:

(i) A spindle shaped stab injury of 2x1 cm.

was present from the left upper chest - inner aspect 5 cms. away from the midline and 5 cms. below the mid clavicular line situated obliquely, the

edges were clean. The upper and the lower ends were sharp. On deeper dissection the wound has entered into the thoracic cavity by cutting the

3rd rib at the cost chondral junction slantingly punctured the upper lobe of the left lung through and through entered into the pericardium punctured

into the left ventricle of the heart. Total depth of the injury 10.5 cms

(ii) A spindle shaped stab injury 2x0.5 cms was present on the upper part of the right side of the abdomen at the mid auxiliary line 3cMs. below

the last rib (sub costal area) vertically situated. Edges were clean. Upper and lower ends were sharp. On deeper dissection the stab has entered

vertically into the abdominal cavity by puncturing the omentum and entered into the lower part of the anterior aspect of the right lobe of the liver.

Total depth of the injury 6 cms.

(iii)A spindle shaped stab injury 2x1x1 cm was present on the right upper back situated obliquely. The edges were clean, upper ends and lower

ends were sharp. On deeper dissection the underlying muscles were with clots.

(iv)A spindle shaped stab injury 3x1 cm. was present on the left middle of the back at the 6th intercostal, space situated vertically. On deeper

dissection the injury has entered into the left thoracic cavity punctured the middle of the posterior part of the middle lobe of the left lung. The edges

of the injury were clean. Upper end blunt and lower and was sharp.

(v) A spindle shaped stab injury of 2x1x1 cm. was present on the left upper back just below the shoulder vertically situated. Edges were clean.

The upper end and the lower ends were sharp. On deeper dissection the muscles underneath were with clots.

(vi) A spindle shaped stab injury of 3x1x2 cms. was present on the left glueteal region situated transversely. The edges were clean. The right end

was sharp and left end was blunt. On deeper dissection the underlying muscles were with clots.

(vii) A spindle shaped stab injury of 3x1 cms. was present on the right lower part of the back near right hip transversely situated. The edges were

clean. The right end was blunt and the left end was sharp. On deeper dissection the underlying muscles were with clots, (injury right kidney

noted).Total length of the injury 5 cms.

(viii) A spindle shaped injury 3x1x2 cms. Was present on the right lower part of the back of the thigh situated transversely below the injury No. vii.

The edges were clean. The right end was blunt and the left end was sharp. On deeper dissection the underlying muscles were with clots.

(ix) An abrasion of 2x1 cm. was present on the left upper part of the back.

Other Findings:

Opening the abdomen:

A free fluid blood of 200 c.c. was present in the peritoneal cavity Opening of Thorax:

Right side empty. Left side - 500 c.c of fluid blood was present.

Pericardium: Injury noted. Haemopericardium with 200 ml. of fluid blood.

Heart: Empty. Injury noted.

Coronary vessels: Patent.

Lungs: Right lung congested. Left Lung pale. Injury noted.

Trachea and Hyoid Bone: Intact.

Stomach: 200 grams of partly digested food. No definite smell. Mucosa pale.

Liver: Pale. Injury noted.

Spleen: Pale.

Kidneys: Left kidney pale. Right kidney: injury of 1x0.5x0.5 cms. was present on the middle of the posterior aspect with clots present in the

perinephric tissues.

Bladder: Empty. Uterus: Pale and normal.

Opening of the Head:

No external or internal injury or haemorrhage was present anywhere in the scalp, skull or in the brain - cut section pale.

P.W.14 - Doctor was of the opinion that the deceased would appear to have the of multiple stab injuries and its complications. He issued

postmortem certificate Ex. P.12.

(t) After the postmortem, P.W.6 - Police Constable No. 1776, recovered M.O.3 saree, M.O.4 petticoat, M.O.5 jacket and M.O.6 Thali with

four gold coins and four gold gundus tied with the thali rope from the body of the deceased and produced the same in the Police Station, at about

8 30 P M on 20.10.1983.

(u) On 29.10.1983, P.W.16 - Muthuvelu, Inspector of Police, who took charge of the case for further investigation sent all the material objects

along with the requisition Ex. P. 4 to the Judicial Magistrate No. 1, Madurai, for chemical analysis.

(v) On 15.11.1983, P.W. 10 - Muthusamy, working in the aforesaid Magistrate Court received the material objects and Ex. P. 4 requisition and

sent the same for forensic examination, with the covering letter of the Magistrate Ex. P. 5.

(w) P.W. 10 Muthusamy, received Ex.P6 chemical report on 7.3.1984, Ex.P.7 another chemical report on 31.3.1984 and Ex.P.8 Serologist''s

report on 19.4.1984.

(x) On 23.12.1983, P.W. 16 - Inspector of Police finished the investigation and filed the final report before the committal Court, against the

accused for the offences under Sections 341 and 302 read with Section 34 of Indian Penal Code.

On committal, the learned First Additional Sessions Judge, Madurai, framed the charge against the accused u/s 302 read with Section 34 of

Indian Penal Code.

The accused 1 and 2, when questioned as respects the charge so framed, denied the same and claimed to be tried.

In proof of the charge so framed, the prosecution examined P. Ws. 1 to 16, filed Exs.P1 to P14 and marked M. Os. 1 to 17. On the side of the

defence, Exs.D1 to D4 were marked.

On termination of trial, the learned Sessions Judge, questioned the accused 1 and 2 u/s 313 Code of Criminal Procedure, to explain the

incriminating circumstances, appearing against them in evidence brought on record. Both the accused denied their complicity in the crime. They

further contended that a false case was foisted against them at the instance of the proprietor of Bombay wine shop and one Raju Konar. They,

however, did not examine any witness on their behalf.

The Sessions Court, after having considered the evidence, oral and documentary, adduced by both sides, found the accused 1 and 2 not guilty

and acquitted them in respect of the above said charge Hence, this appeal by the State.

Mr. R. Shanmughasundaram, learned Public Prosecutor, took us through the entire evidence and the judgment of the Court below and

strenuously, more so effectively contended that the reasonings given for acquitting the accused/ Respondents are palpably wrong. He further

submitted that the conclusions arrived at by the trial Court are not on the basis of the evidence available, but on the mere conjectures and surmises

he would also point out several portions of the deposition and contended that the findings given by the trial Court on various aspects, which were

stated to be on the basis of the evidence available are not correct, since actually no such evidence is available on record. In short, the contention of

the learned Public Prosecutor is that a serious mis-carriage of justice has been caused by the trial Court by acquitting the accused/respondents

when there are abundant and acceptable materials available on record to establish the serious crime committed by the Respondent / accused.

Per contra, Mr. S. Ashok Kumar, learned Counsel appearing for the Respondents, while countering the submissions made by the learned

Public Prosecutor, contended that in addition to the reasonings given by the trial Court, there are other suspicious features found available to

sustain the judgment of acquittal. He further meticulously read out the entire evidence again, in order to substantiate his submissions referred to

above.

Before adverting to the merits and the reasonings in the judgment of the trial Court, and the submissions made by the respective counsel, this

Court at the outset shall examine the question regarding the extent of powers inherent with the appellate Court, especially in the case of appeal

against the acquittal.

Section 386 of the Code of Criminal Procedure provides thus:

Powers of the Appellate Court - After perusing such record and hearing the Appellant or his pleader, if he appears, and the Public

Prosecutor if he appears, and in case of an appeal u/s 377 (Appeal by the State Government against sentence) or S78 (Appeal in case of

acquittal), the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal or

may -

(a) in an appeal from an order of acquittal, reserve such order and direct that further inquiry be made, or that the accused be re-tried or committed

for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction --(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a

Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii)after the finding, maintaining the sentence, or

(iii)with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same"".

12(a). (a) While interpreting this section, the Apex Court on various occasions laid down principles and guidelines to be taken note of by the

appellate Court while exercising the powers conferred u/s 386 of the Code of Criminal Procedure. Those principles are given below.

(b) In Bharwad Jakshibai Nagjibhai and Ors. v. State of Gujarat (1995 SCC (Crl.) 993) the Apex Court has made the following observations:

Law is now well settled that though the Code of Criminal Procedure does not make any distinction between the powers of the Appellate Court

while dealing with an order of conviction or of acquittal, normally the appellate Court does not disturb an order of acquittal in a case where two

views of the evidence are reasonably possible. But the above principle is not applicable where the approach of the trial Judge in dealing with the

evidence is manifestly erroneous and the conclusions drawn are wholly unreasonable and perverse"".

(c) In Ram Kumar v. State of Haryana (1995 S.C.C (Crl.) 355), it has been held as follows:

The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and

386 Code of Criminal Procedure, are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the

High Court should give proper weight and consideration to the view of the trial Court with regard to the credibility of the witness, the presumption

of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding

of fact arrived at by a Judge who had the advantage of seeing the witness. No doubt it is settled law that if the main grounds on which the Court

below has based its order acquitting the accused, are reasonable and plausible, and the same cannot entirely and effectively be dislodged or

demolished, the High Court should not disturb the order of acquittal. We shall, therefore, examine the evidence and the material on record to see

whether the conclusions recorded by the trial Court in acquitting the Appellant are reasonable and plausible or the same are vitiated by some

manifest illegality or the conclusions recorded by the trial Court are such which could not have been possibly arrived at by any Court acting

reasonably and judiciously which may in other words be characterized as perverse

(d) In Goverdhan Raoji Ghyare v. State of Maharashtra (1994 S.C.C. (Crl.) 15), the Apex Court has made the following observations:

There is no manner of doubt that the Court of Appeal is required to take into consideration the reasons given by the trial Court in basing a

judgment of acquittal, very carefully and if such reasonings are consistent with the evidence, as a matter of prudence, the Court of appeal should

not interfere with the order of acquittal, by reappreciating the evidence and taking some other view. But if the reasonings given by the trial Court

are contrary to the weight of evidence, the Court of Appeal would be justified in discarding the same in exercise of its appellate jurisdiction"".

(e) In Amrik Singh, Sathnam Singh and Anr. v. State of Rajasthan (1994 S.C.C. (Crl.) 447), it has been held as follows:

The jurisdiction and obligation of the High Court to reappreciate the evidence is identical in case involving acquittal and conviction and all that is

required of the High Court while dealing with an appeal against acquittal is that it shall take into consideration and be alive of the factors which

influenced the trial Court to record an order of acquittal. In the present case; the High Court had dealt with the case keeping in view the above

settled principles and had analysed and appreciated the entire evidence with great care and caution"".

(f) In State of Punjab v. Surja Ram (1995 S.C.C. (Crl.) 937), it is stated as follows:

While dealing with an appeal against an acquittal recorded by the High Court, this Court does not ordinarily interfere with it, but if it is found that

relevant and reliable evidence on record has been lost sight of, ignored or brushed aside for reasons which are wholly unsustainable this Court will

not only be justified - but it will be its duty - to interfere with the acquittal to make amends for the failure of justice"".

(g)In Uppari Venkatasamy and Ors. v. The Public Prosecutor, High Court of Andhra Pradesh (1996 S.C.C. (Crl.) 284), the observation of the

Supreme Court is as follows:

in an appeal against acquittal the appellate Court can interfere with the findings of fact recorded by the trial Court and can upset the acquittal by

reappreciating evidence if it is found that the view taken by the acquitting Court was not a possible view on the evidence on record. The appellate

Court would not be entitled to interfere unless the view of the acquitting Court is found to be perverse or infirm or palpably erroneous"".

(h) In Betal Singh v. State of M.P (1996 S.C.C. (Crl.) 571), the observation of the Apex Court is as follows:

Where the credibility of the evidence depends upon the factors other than the demeanour of witnesses, the appellate Court is free to come to its

own conclusions as to the credibility. But at the same time if the view taken by the trial Court in acquitting the accused is not palpably wrong there

would be no occasion for reversal of the order of acquittal.

(i)In Ashok Kumar Vs. State of Rajasthan, the Supreme Court has held as follows:

Law is well settled. While caution is the watchword, in appeal against acquittal as the trial Judge has occasion, to watch demeanor of witnesses

and interference should not be made merely because a different conclusion could have been arrived, the provision does not inhibit any restriction or

limitation. Prudence demands restraint on mere probability or possibility but in perversity or misreading the interference is imperative otherwise

existence of power shall he rendered meaningless

(j) In State of U.P. Vs. Krishna Gopal and Another, the Supreme Court observed as follows:

on the limitations of appellate Court under the supposed rule that unless there are ""substantial"" or ""compelling"" reasons or ""very substantial

reasons"" or ""strong reasons"", the findings in a judgment of acquittal should not be interfered with do not detract from the plenitude of the power of

the appellate Court to review and reappreciate the evidence if the order of acquittal on a review of the evidence is found to be grossly erroneous.

There is, thus no immunity to an erroneous order from a strict appellate scrutiny. But the appellate Court wherever it finds justification to reverse an

acquittal must record reasons why it finds the lower Court wrong"".

(k)In State of Uttar Pradesh Vs. Pussu alias Ram Kishore, the Supreme Court observed as follows:

the rule of practice that ordinarily this Court should not interfere with Judgments of acquittal on a mere reappreciation of evidence. But if there are

glaring infirmities, in the judgment of the lower Court, resulting in a gross miscarriage of justice, it is the duty of Appellate Court to interfere"".

(l) In Ramesh Babulal Doshi v. State of Gujarat (1996 (1) S.C.C. (Crl.) 548) the Apex Court has held as follows:

the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the

evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire

approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, the Court shall

interfere and set right the justice if the appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in

view of the serious infirmities, it can then - and then only - reappraise the evidence to arrive at its own conclusions"".

(m) In Lalit Kumar Sharma and Others Vs. Superintendent and Remembrancer of Legal Affairs, Government of West Bengal, it has been held as

follows:

the power of an appellate Court to review evidence in appeals against acquittal is extensive as its powers in appeals against convictions, but that

power is with a note of caution that the appellate Court should be slow in interfering with the orders of acquittal unless there are compelling reasons

to do so. If a finding reached by the trial Judge cannot be said to be an unreasonable finding, then the appellate Court should not disturb that

finding even if it is possible to reach a different conclusion on the basis of the material on record"".

(n) In Rajendra Prasad Vs. State of Bihar, , it has been laid down as under:

in an appeal against acquittal, to clearly indicate firm and weighty grounds, from the record, for discarding the reasons of the trial Court in order to

be able to reach a contrary conclusion of guilt of the accused. The High Court should be able to point out in its judgment that the trial Court''s

reasons are palpably and unerringly shaky and its own reasons are demonstrably cogent. it is not legally sufficient that it is just possible for the High

Court to take a contrary view about the credibility of witnesses but it is absolutely imperative that the High Court convincingly finds it well-nigh

impossible for the trial Court to reject their testimony"".

(o) In Harwadi Kishor Parmanand v. State of Gujarat (II (1994) C.C.R. 456 (S.C.) the Apex Court held that the High Court, while interfering

with the judgment of acquittal shall demonstrate in its well reasoned judgment that the trial Judge rejected the evidence on misplaced considerations

as well as on flimsy grounds and took entirely an unreasonable view resulting into patent miscarriage of justice.

(p) In Pala Singh v. State of Punjab (AIR 1972 S.C. 2879), the Supreme Court has observed as follows:

Substantial one compelling reasons"" ''good and sufficient cogent reasons'', ''strong reasons'' are not intended to curtail the undoubted power of an

Appellate Court in appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so the Appellate Court

should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the Court below in support of

order of acquittal, but should express the reasons in its own judgment which led it to hold that the acquittal was not justified.

12-A. Keeping in view of the above principles, laid down by the Apex Court, it has to be seen as to whether the view taken by the learned trial

Judge in acquitting the Respondents/ accused, in view of the facts and circumstances of the case is justified or not and whether the findings are

perverse, which requires the order of acquittal to be set aside.

12-B. While setting aside the judgment of acquittal, it is first required to seek an answer to the question whether the reasonings of the trial Court

are palpably wrong, manifestly erroneous or demonstrably unsustainable. If this Court answers the above question in the negative, the order of

acquittal will not be disturbed. Conversely, if this Court holds that the grounds of acquittal cannot at all be sustained, then this Court could go into

the process of reappreciation of the evidence to arrive at its own conclusions. In the light of the above situation, we have therefore first to find out

whether the grounds of acquittal on the basis of which the trial Court arrived at such conclusions and the findings of the trial Court are sustainable.

The grounds of acquittal as referred to in the judgment of the trial Court should be summarised as follows:

(i) As per Ex.P.2 entry in the General Diary, the Police Constables, namely, P.W.1 - Balakrishnan, P.C. No. 2285, P.W.4- Ponnusamy P.C. No.

1021, P.W.5- Nagaiyasamy P.C. No. 1933 and P.W.6 - Ahamed Ghani P.C. No. 1776, were permitted to take lunch only for one hour i.e.,

from 12.00 Noon to 1.00 P.M. but the prosecution case through these witnesses is that they were permitted from 12.00 Noon to 1.30 P.M., i.e.,

1 1/2 hours to take lunch at Saratha Mess situated at a long distance. In order to suit the case of prosecution there is a correction made in Ex.D.2

entry in the general Diary by changing the time as 12.00 Noon to 1.30 P.M. This correction must have been deliberately made in order to extend

the time for 30 minutes more, to help the witnesses to say that they proceeded to Saratha Mess, which was situated at a long distance from the

place of occurrence. So, their presence at the place of occurrence is doubtful.

(ii) P.W.1 - Balakrishnan, P.C. No. 2285, P.W.4-Ponnusamy P.C. No. 1021, P.W.5- Nagaiyasamy P.C. No. 1933 and P.W.6 - Ahamed Ghani

P.C. No. 1776 could not have gone for lunch together. P.W.12 - Arumugham, P.C. No. 1980, another Constable stated that the Constables were

allowed to go for lunch in batch after batch and not as a group and thereby they could not have seen the occurrence.

(iii). The evidence of P.W.3 - Raman Pillai could not be believed. In chief examination, he has stated that he was working in the Vaigai Lodge, but

in the cross-examination he has stated that he was driving cycle rickshaw without licence within the limits of B. 10 Police Station, Madurai. So, he

is a witness set up by Police.

(iv) The evidence of P.W.4 - Ponnusamy P.C. No. 1021 and P.W.6 - Ahamed Ghani P.C. No. 1776 could not be believed, since they did not tell

the police at the time of investigation that the second accused with M.O.2 Pitchuva knife stabbed on the abdomen of the deceased.

(v) Three more local and independent witnesses cited as eye-witnesses in the charge sheet were not examined in the Court,. Non-examination of

these witnesses would create doubt.

(vi) No blood stained earth was recovered from the place where the victim was stabbed. P.W.7 - Namasivayam, Mahazar witness has stated in

his evidence that blood clot was collected from the show-case of the Bombay wine shop, which was kept 15 feet away from the entrance viz,

inside the wine shop. Therefore, the occurrence should have taken place only inside the wine shop and not at the road. Curiously, the proprietor of

the Bombay wine shop was not examined.

(vii) The evidence of P.W.5 - Nagaiyasamy, Constable No. 1933 and P.W.6 - Ahamed Ghani Constable No. 1776 could not be believed. They

said that they took the victim -- Valli to the Rajaji Government Hospital, Madurai and then produced before the Doctor P.W.2. In Ex.D. 1 Police

Memo, the names of these witnesses were not mentioned as the persons who brought the victim to the hospital, P.W.2 Doctor would say that if

any Police Constable brought the deceased to the Hospital, he would have mentioned the name of the said police constable in the records.

(viii) According to the prosecution case, the first accused - Muthu caused injury No. 1 found on the chest of the deceased with M.O.1 knife, and

the second accused - Pandi caused injury No. 6 found on the left glueteal region with M.O.2 pitchuva knife. According to P.W. 14, the Doctor,

who conducted the post-mortem, M.O.1 knife, having sharp edge at one side could not cause injury No. 1 and M.O.2 pitchuva knife having sharp

edges on both sides could not cause the injury No. 6. Moreover, after receipt of injury No. 1, the deceased could not have been able to stand. But

the case of the prosecution is that the deceased after receipt of the injuries, ran upto the Bombay wine shop and fell on the steps. So, the medical

evidence is contrary to the ocular evidence.

(ix) Admittedly, Ex.P3, the mahazar for recovery of blood stained articles M. Os. 7 to 17, from the scene of occurrence, and the statements

recorded u/s 161 of Code of Criminal Procedure, from the witnesses were sent to the Court only after three days. This is a serious infirmity, as per

the decision reported in 1974 L.W.(Crl.) 190 (Karunakaran Jabamani Nadar In Re).

The most agonising factor in this case after thorough scrutiny of the entire records is that the reasonings given by the trial Court are totally

erroneous, based upon full conjectures and surmises. The trial Court while arriving at this conclusion discussed various aspects of the evidence

which are not available on record. The trial Court observed in various places as if there is no evidence available to establish the particular factor.

But, those materials are very much available in the records. In the same way, the trial Court analysed and appreciated the various materials as if

they were available in the case, whereas those materials are not available in this case. As such, a careful reading of the judgment of the trial Court,

would show that this is a classic example for the judgment with full of preposterous and perverse reasonings, resulting in the flagrant miscarriage of

justice, warranting this Court to interfere with the same so as to set right the injustice.

Now, we shall come to the arena of discussion, with reference to the reasonings given by the trial Court in acquitting the Respondents/ accused

one by one.

a) The first reasoning of the trial Court is that though the lunch time was one hour between 12.00 hours and 13.00 hours, P.W. 13 Hariharan,

Sub Inspector of Police,.made a correction in Ex.D.2 entry in the General Diary as 13.30 hours in the place of 13.00 hours, in order to suit the

prosecution case that the Police Constables, were the witnesses happened to see the occurrence, on the way to Saratha Mess, situate at a long

distance from the Police Station and that therefore the presence of the Police Constables at the place of occurrence is doubtful.

b) According to these Police Constables, the witnesses who happened to see the occurrence, they were permitted to go for lunch between 12.00

hours and 13.30 hours. The suggestion put by the defence was that the time of lunch was only one hour and not 1 1/2 hours. In, order to

substantiate the case of the defence, Ex.D.2 Entry in the General Diary was marked through P.W. 13--Sub Inspector of Police, since there was a

correction from 13.00 hours to 13.30 hours. P.W.13--Sub Inspector of Police of course, admitted that he made such correction, but at the same

time, he gave explanation that he initially wrote at 13.00 hours due to inadvertence, but corrected the same subsequently. Instead of considering

this explanation of P.W. 13 Sub Inspector of Police, the trial Court goes on observing as if P.W. 13 admitted that the Police Constables were

permitted to take lunch for one hour. There is no admission to that effect.

c) It is the consistent case of the prosecution through the witnesses as well as the documents that the time permitted for lunch to these constables

was between 12.00 hours and 13.30 hours. The correction from 13.00 hours to 13.30 hours has no significance for another reason also.

d) The occurrence had taken place at 12.30 hours. As per Ex.D.3 General Diary, the entry relating to the time 12.45 hours shows that P.W.1--

Balakrishnan Police Constable No. 2285 and P.W. 4--Ponnusamy, Police Constable No. 1021 came to the Police Station with the accused and

the knives and gave a report, which was registered in Crime No. 1398 of 1983 u/s 307 of Indian Penal Code, and as such the complaint Ex.P.1,

given by P.W.1 was registered by the Police at 12.45 hour itself. P.W.2. Doctor received the Police Memo Ex.D.1 from P.W.5 Nagaiyasamy,

Police Constable No. 1933 and examined her at 13.00 hours and pronounced the victim as dead. Therefore, the occurrence, the registration of the

complaint and the death of the victim have taken place between 12.30 hours and 13.00 hours. Under these circumstances, there is no necessity for

P.W. 13 Sub Inspector of Police, to make a deliberate correction in Ex.D.2 entry from 13.00 hours to 13.30 hours, in order to suit the

prosecution case.

e) As referred to earlier, the entry in Ex.D.3 General Diary, relating to the production of the accused with the blood stained weapons to P.W. 13

Sub Inspector of Police at 12.45 hours, would make it clear that the correction in Ex.D.2 entry from 13.00 hours to 13.30 hours has no

significance. The documents Exs.D.2 and D3, complaint Ex.P.1, printed First Information Report Ex.P.9 would show that the Police Constables

along with the accused reached the Police Station by an Auto rickshaw within 15 minutes from the time of occurrence. So, it is quite clear that the

correction of 13.00 hours into 13.30 hours would not make any dent on the core of the prosecution. It is unfortunate that the trial Court observed

that the correction was a deliberate one under the misconception even without considering the explanation offered by the Sub Inspector of Police--

P.W.13.

f) Whatever be the case, by virtue of Ex.D.2 marked by the defence, it is clear that all these eye witnesses, namely, the Police Constables, were

permitted to go for lunch during the time of occurrence, namely, at 12.30 hours.

a) The next reasoning is that in view of the admission of P.W. 12--Arumugham, P.C. No. 1980, the Police Constables P. Ws.l--Balakrishnan

P.C. No. 2285, P.W.4--Ponnusamy P.C. No. 1021, P.W.5-- Nagaiyasamy P.C. No. 1933 and P.W.6--Ahamed Ghani P.C. No. 1776, could

not have gone for the lunch together and thereby they could not have seen the occurrence.

b) It is unfortunate that the trial Court having considered Ex.D.2 entry in the General Diary Ex.D.3 to conclude that only one hour time was

permitted for lunch for all these Police Constables, has lost sight of the facts that in Ex.D.2 itself it is mentioned that the Police Constables P. Ws.

1, 4 to 6 and other constables were permitted to go for lunch. of course P.W. 12-- Arumugham, P.C. No. 1980, would admit that the Police

Constables were permitted to go for lunch batch by batch and not in one group. It is important to note that P.W. 12--Police constable has stated

in the cross-examination that when he came back to the Police Station after finishing his lunch, no Police Constable was available at the Station at.

12.45 P.M.P.W.13--Sub Inspector of Police, also would admit on the strength of the defence document Ex.D.2 that totally seven Constables,

including P. Ws. 1, 4 to 6 were sent in one batch. As such, it cannot be said that the evidence of P.W.12--Police Constable, is completely

contrary to the evidence of P.W.13-- Sub Inspector of Police. Any way his admission that no Police Constable was available in police station,

when he came back, actually supports the prosecution. Ex.D.2 also confirms the same.

a) The next reasoning was that though P.W.3--Raman Pillai deposed in chief that he was working in Vaigai Lodge, he admitted in the cross-

examination that he was driving cycle rickshaw without license within the limits of B.10 Police Station, Madurai, and so he was deposing falsely at

the instance of the Police in B.10 Police Station, and as such he could not be believed.

b) This observation is wrong. P.W.3--Raman Pillai, never admitted that he used to drive cycle rickshaw only within the jurisdiction of B.10 Police

Station, Madurai. It is the evidence of P.W.3 that he never went to the B.10 Police Station previously. P.W.3 would state both in the chief and

cross examination that he was working in Vaigai Lodge for the last six years then. He also admitted that he used to drive cycle rickshaw in all the

areas. There is no material whatever to conclude that P.W.3 was speaking falsehood in order to satisfy B.10 Police Station. He is a local and

independent witness. It is a well known factor that in every lodge, in order to take the occupants of the lodge, cycle rickshaws are generally

parked in front of the lodge itself and there is possibility for this witness to drive rickshaw in his spare time to make additional income. According

to P.W.3, at the time of occurrence, he was standing at the entrance of the Vaigai Lodge, situate next to the Bombay Wine Shop. It is also his

evidence that he always used to stand at the entrance of the said lodge. He further would speak that on the day of occurrence, he stood at the

Vaigai Lodge entrance from 12.00 hours onwards. During the course of Cross-examination, he was able to give full details about the shops around

the place of occurrence and the particulars regarding the distance. Over more, P.W.3 has attested the Ex.P.1 complaint given by P.W.1. His name

has been mentioned as the person, who accompanied the other Police Constables and produced the accused before the Police Station, in Ex.D.3

General Diary, marked by the defence. Without considering these materials, the conclusion arrived at by the trial Court that P.W.3 was speaking

falsehood in order to satisfy B.10 Police Station, has no foundation.

a) The trial Court in its next reasoning disbelieved the evidence of P.W.4--Ponnusamy P.C. No. 1021 and P.W.6-Ahamed Ghani P.C. No.

1776 on the ground that they did not tell the police at the time of investigation that the second accused-Pandi with M.O. 2 pitchuva knife stabbed

on the abdomen of the deceased. This observation made by the trial Court is again wrong.

b) When P.W. 15--Inspector of Police was questioned during his cross-examination as to whether P.W.4 Ponnusamy P.C. No. 1021 and P.W.6-

-Ahamed Ghani P.C. No. 1776 told him in their statements u/s 161 of Code of Criminal Procedure that the second accused stabbed with M.O.2

on the right side of the abdomen of the deceased, he stated that those witnesses did not refer about the right side of the abdomen. But the fact

remains that these witnesses have stated to the Police that the second accused stabbed on the abdomen of the deceased. P.W. 15--Inspector of

Police, only referred about the omission relating to the right side of the abdomen and not the abdomen. But the trial Court wrongly observed,

without any basis whatsoever, that P.W.4-Ponnusamy P.C. No. 1021 and P.W.6--Ahamed Ghani P.C. No. 1776 did not tell the police that the

second accused stabbed on the abdomen of the deceased. Without considering the evidence of P. Ws.4 and 6 in toto, which is corroborated by

the other materials, the trial Court had wrongly observed that P.W.4 and P.W.6 did not tell P.W.15, the Inspector of police, that the second

accused stabbed on the abdomen of the deceased, that too when there is no such admission by P.W.15--Inspector of Police.

a) The trial Court entertained a doubt in its next reasoning over the prosecution case due to the non-examination of three local and independent

witnesses before the Court, though they were cited as witnesses in the charge sheet.

b) this reasoning also lacks substance for the following reason. In this case, all the eyewitnesses, namely, P. Ws. 1, 3 to 6 have witnessed the

occurrence in the broad day light. P. Ws. 1, 4 to 6 are Police Constables attached to the local Police Station. P.W.3 --Raman Pillai, is the witness

of the locality, who was working in Vaigai Lodge, situate near the place of occurrence, which fact has been mentioned in Ex.P.2 Observation

Mahazar and Ex.P.13 rough sketch. Vaigai Lodge is situate next to the Bombay Wine shop. When there are five eye-witnesses, who are

independent and from local area, examined before the Court, it is highly unfortunate for the trial Court to entertain suspicion on the prosecution

case, merely because the other three persons mentioned in the charge sheet have not been examined. P.W.15 Inspector of Police would state that

all these eye-witnesses, namely, P. Ws. 1, 3 to 6 were examined during the inquest itself, between 4.30 P.M. and 7.00 P.M. on 19.10.1983. This

inquest report reached the Court on the same day night. Further, the names of these witnesses examined in Court were mentioned in the First

Information Report itself. The First Information Report was registered at 12.45 P.M. on 19.10 1983 and reached the Magistrate at 4.30 P.M. on

the same day. The other witnesses such as Paulraj, Ganesan, Samudragani, cited in the charge sheet, were examined at the Police Station only at

late night on the day of occurrence. So, these witnesses are not as important as witnesses like P. Ws. 1, 3 to 6. The particulars about these

witnesses examined in the Court were mentioned in the earliest documents such as Ex.P.1 complaint, Ex.P.9 First Information Report, Ex.D.2

entry in the General Diary and Ex.D.3 General Diary and the inquest report Ex.P.14. So, the suspicion entertained by the trial Court merely

because the other three persons mentioned in the charge sheet have not been examined is quite imaginary.

a) In the next reasoning, the trial Court observed that the occurrence could not have been taken place on the road side, since no bloodstained

earth was recovered whereas blood cloth was collected from the show case of the Bombay Wine Shop, which was kept 15 feet away from the

entrance, inside the shop, as per the evidence of P.W.7-Namasivayam, Mahazar witness, and so, the occurrence could have been taken place

only inside the shop and not at the road side as put forth by the prosecution.

b) This is a wrong conclusion arrived at by the trial Court without any foundation. P.W.7 - Namasivayam, the Mahazar witness, never stated that

the show case was kept inside the shop 15 feet away from the entrance.

i) From these pieces of evidence, it is fairly apparent that the show-case from which the blood stain clots collected was kept at the entrance steps

of the shop and not inside the said wine shop, 15 feet away from the entrance, as wrongly observed in the judgment of the trial Court.

a) The trial Court in its next ground concluded that P.W.5 - Nagaiyasami P.C. No. 1933 and P.W.6 - Ahamed Ghani, P.C. No. 1776 Police

Constables, who took the victim to the Government Hospital and produced Ex.D.1 Police Memo to the Doctor - P.W.2, could not be believed

since the name of the Police Constables namely, P. Ws.5 and 6 were not recorded by the Doctor - P.W.2 as the persons who brought the victim

to the Government Hospital.

b) The trial Court observed that P. Ws. 5 and 6 Police Constables would not have brought the victim to the Hospital and that somebody must

have entrusted the victim along with Ex.D1 Memo to the Government Hospital authorities. The trial Court has miserably failed to see one important

aspect, which could be noticed from Ex.D.1. As per the evidence of P.W.13 - Sub-Inspector of Police, P.W.5 - Nagaiyasamy, P.C. No. 1933

contacted from the Out Post Police Station of Rajaji Government Hospital, Madurai through telephone and received instructions from P.W.13 -

Sub-Inspector of Police and then he prepared Ex.D.1 memo by giving the Memo. No. 142/MC/B. 10/83 and thereafter he presented the same to

the Doctor - P.W.2.

c) A reading of Ex.D.1 marked by the defence shows that it was written by P.W.5 -Nagaiyasamy, P.C. No. 1933, on behalf of the Sub -

Inspector of Police - P.W. 13 and the same was signed by him. Though the Doctor P.W.2 did not mention the name of the Police Constables in

evidence, he would admit that on 19.10.1983 at about 13.00 hours the victim was brought along with Ex.D.1 Memo. The said memo Ex.D.1 was

available in the file of the Doctor - P.W.2, when he deposed before the Court. That was how Ex.D.1 memo was marked by the defence through

the Doctor P.W.2. As such Ex.D.1 memo and the evidence of P.W.2 - Doctor indicating the production of the victim before the Doctor -P.W.2 at

13.00 hours on 19.10.1983 cannot be doubted.

d) of course, P.W.2 admits that if any Police Constable has brought the victim to the Hospital, he would have mentioned the name and number of

such Police Constable. It is also important to note that P.W.2 - Doctor did not note the name of, any person in Ex.D.1 as the person, who brought

the victim to the Hospital.

e) The evidence of P. Ws. 5 and 6 Police Constables is that they were in mufti at that time. Suppose, if the name of any other person is mentioned

in the record available with the Doctor- P.W.2 other than P. Ws.5 and 6 Police Constables, then there is some meaning to entertain a doubt

relating to the handing over of Ex.D.l memo by P.W.5 - Nagaiyasamy, P.C. No. 1933. That is not the case here.

f) Ex.D.1 memo contains the signature of P.W.5 - Nagaiyasamy, P.C. No. 1933. This has not been challenged, more so, Ex.D.l is marked on the

defence side. In fact, P.W.2 -Doctor did not note anything in Ex.D.1 memo, except writing some identity particulars of the victim over the page of

Ex.D.1. It is the evidence of P.W.2 - Doctor that as soon as he came and saw the victim, he found that she was dead, and immediately thereafter

he sent the body to the mortuary.

g) Failure to note the names of P. Ws.5 and 6 Police Constables in Ex.D.1 memo by the Doctor - P.W.2 will not in any way lead to the conclusion

that the victim could not have been produced by the P. Ws. 5 and 6 Police Constables, especially when the author of Ex.D.1 was admittedly

P.W.5 - Nagaiyasami, P.C. No. 1933.

h) The trial court completely forgot to analyse the evidence of P. Ws.5 and 6 Police Constables with reference to the main occurrence, especially

when their names were mentioned in the First Information Report and were examined during the course of inquest as eye-witnesses.

a) The next reasoning is regarding the contradiction between ocular evidence and the medical evidence. It is observed by the trial Court that

though the case of prosecution is that the first accused caused injury No. 1 with M. Order 1 knife and the second accused caused injury No. 6

with M.O.2 pitchuva knife, P.W.14, the Doctor who conducted the postmortem would say that injury Nos. 1 and 6 would not have been caused

by M. Os. 1 and 2 respectively. It is further observed that when P.W. 14 would say that the deceased would not have been able to stand on

receipt of the first injury and the deceased would not have gone to the Bombay wine shop and fell down at the entrance, as spoken to by the eye-

witnesses. This is again a wrong conclusion without any evidence. There is no such evidence available on record as referred to by the trial Court.

b) P.W.14 - Doctor, who conducted the postmortem on the body of the deceased, found 9 injuries on the body. The injury No. 1 was found on

the chest. Injury. No. 4 was found on the back. Injury. No. 7 was found on the right hip. Injury No. 8 was found on the right thigh. As per the

evidence of P.W. 14-Doctor, these injuries would have been caused by M.O.1 knife. The Doctor would further say that Injury No. 2 found on the

abdomen, injury No. 3 found on the right back, injury No. 5 found on the left back, injury No. 6 found on the left side of the buttocks, could have

been caused by M.O.2 pitchuva knife. This evidence is fully in consonance with the evidence of the ocular witnesses. The ocular witnesses stated

that the first accused caused injury on the left chest, back and the thigh of the deceased with. M.O.1 indiscriminately and the second accused

inflicted the injuries on the abdomen, back and left side of the buttocks with M.O.2 pitchuva knife.

c) of course in cross-examination, P.W. 14 - Doctor would say that the first injury found on the chest of the deceased would have been caused by

the weapon having sharp edges on both sides like M.O.2. But P.W.14 - Doctor never admitted that injury. No. 6 could not have been caused by

M.O.2, as observed by the trial Court.

d) Even with regard to the injury No. 1, it is not the evidence of P.W.14 - Doctor that the knife M.O.1 used by the first accused could not at all

caused injury No. 1, whereas, his opinion is that the first injury found on the chest of the deceased could have been, caused by the pitchuva knife

M.O.2, having two edges on both sides.

e) In this context, we shall bear in mind that this is an evidence in the nature of opinion. It is important to note that he has also stated in his evidence

that injury No. 1 could have been caused by M.O.1 knife also. Moreover, both the accused 1 and 2 stabbed on the deceased indiscriminately on

her chest, back buttocks and thigh with M. Os. 1 and 2.

(f) Furthermore, the evidence of eyewitnesses is that the first and second accused were walking along the road behind the deceased and then

suddenly the first accused went ahead of her and stabbed her. In this context, we must note that all these witnesses, namely, P. Ws. 1, 4 to 6

Police Constables were walking along the road behind the victim, on their way to Saratha Mess, for taking lunch. Another eye-witness P.W.3-

Raman Pillai, was also standing in front of the vaigai Lodge, at a distance of 20 feet from the place of occurrence. So, it is not possible for the eye

witnesses to give, an exact account, on which part of the body the injuries were inflicted, especially when the occurrence took place suddenly

within a few seconds. Therefore, the evidence adduced by the Doctor - P.W.14 cannot be said to be a contrary evidence to the ocular evidence.

g) Moreover, the statement with regard to the injury No. 1, as referred above by the Doctor -P.W.14 is mere opinion. Furthermore, the Doctor-

P.W.14 did not say that injury No. 6 could not have been caused by M.O.2 Pitchuva knife used by the second accused. So, the conclusion

arrived at by the trial Court was again on mis-reading.

h) of course, P.W.14 - Doctor would state that the deceased would not have been able to stand on receipt of the first injury i.e., the injury of the

chest which again is only an opinion. It is the evidence of the eye-witnesses that the first and second accused simultaneously and indiscriminately

caused all these injuries. The victim deceased probably out of shock and sudden impulse had to run to take shelter. That was how she ran to a

distance of 13 feet and fell down on the entrance step of the Bombay wine shop. It is quite natural, as stated by P.W.14 - Doctor that she could

not have stood in that place the deceased, ran away and fell down on the steps at the entrance of the shop. At that time she was gasping for life.

So, P. Ws.5 and 6 Police Constables took her to the Rajaji Government Hospital, Madurai in an auto rickshaw, where she was declared as dead

by the Doctor P.W.2.

i) P.W.14 - Doctor, who conducted the postmortem on the body of the deceased, stated that the deceased would have survived for five or ten

minutes after the receipt of these injuries. As such, this medical evidence confirms the evidence of the eye-witnesses. Therefore, it cannot be said

that the medical evidence is completely contradictory to the ocular evidence.

a) The next reasoning for entertaining a doubt on the prosecution case by the trial Court is that there was three days delay in sending M. Os.7

to 17, blood stained articles recovered from the scene of occurrence, and the statements recorded u/s 161 of Code of Criminal Procedure, to the

Court, on the strength of the decision reported in 1974 L.W(Crl.) 190 (Karunakaran Jabamani Nadar In re).

b) The above conclusion of the trial Court is wrong for the following reasons:

The occurrence took place at 12.30 P.M. on 19.10.1983, and Ex.P.1 complaint was given to the Police Station at 12.45 P.M., Ex.P.1 complaint,

Ex.P.9 First Information Report and Ex.P.10 express report were all prepared in between 12.45 P.M. and 1.45 P.M. and reached the Court at

4.30 P.M., it self on the same day. Inquest report Ex.P.14 prepared between 4,30 P.M. and 7.00 P.M., reached the Court at 11.00 P.M., on the

same date of occurrence. P.W.15 - Inspector of Police, also stated that on 19.10.1983, he went to the spot at 3.00 P.M. and recovered M. Os.

7 to 17 under Ex.P.3 mahazar.

c) P.W.4-Doctor, who conducted the post-mortem, would say that post-mortem was conducted on 20.10.1983 and P.W.6-Ahamed Ghani, P.C.

No. 1776 recovered M. Os. 3 to 6 from the body of the deceased and handed over the same to P.W.15 - Inspector of Police, and only then

P.W.15 sent all the M. Os. 1 to 17, to the Judicial Magistrate and the same were received by the Magistrate on 20.10.1983, i.e., on the next date

of occurrence, Regarding this aspect, no question was put to P.W.15-Inspector of Police.

d) The statements recorded u/s 161 of Code of Criminal Procedure, were received by the Court on 22.10.1983, as seen from the seal affixed on

those records. But the contents of statements recorded u/s 161, Code of Criminal Procedure and the fact of recovery of all the M. Os. are very

much available in Ex.P.1 complaint, Ex.P.9 First Information Report and Ex.P.14 Inquest report, which were received by the Court on the date of

occurrence itself.

e) So virtually, substantial portion of the investigation was over on 19.10.1983 itself, and all the materials were received by the Court on the date

of occurrence itself. Despite this, the trial Court entertained a doubt without referring as to how the receipt of the material objects and the

statements recorded u/s 161 of Code of Criminal Procedure by the Court after three days would affect the prosecution case.

f) Furthermore, the decision of Karunakaran Jabamani Nadar In re (1974 L.W. (Crl.) 190) as referred to in the judgment of the trial Court, is not

the authority to say that the delay in sending the statements recorded u/s 161 of Code of Criminal Procedure would be fatal to the prosecution

case. In that case, the Division Bench in the appeal, while confirming the conviction, incidentally directed for the issuance of the circular for the

guidance of the Magistrate and the Police, with reference to the importance in the matter of despatch of the documents like, complaint, printed

First Information report, inquest report, statement of witnesses, Medical Memos sent to the Doctor, death intimation, observation mahazar of

recovery etc., and the necessity of the magistrate to put his initial in those documents by noting down the date and time of the receipt. The reason

for this direction is to avoid the fabrication of such documents in grave crimes.

g) In this case, there was no delay in sending the First Information Report and inquest report. However, the Court received the statements

recorded u/s 161 of Code of Criminal Procedure and the material objects only on the third day after the occurrence took place. As regards the

statements recorded u/s 161 of Crl.P.C, it is to be noted that as per the new Code of Criminal Procedure, which came into force on 1.4.1974, the

Investigating Officer could file the statements recorded u/s 161 of Code of Criminal Procedure even at the tune of filing the final report or charge

sheet in the Court. In this context, the citation referred to by the trial Court to throw out the case of the prosecution on the ground of delay of three

days in sending the statements recorded u/s 161 of Code of Criminal Procedure has no relevance.

h) Furthermore, the Apex Court has observed in Nath Singh v. State of U.P (1980 S.C.C (Crl.) 968) that five days delay in sending the material

objects and connected records to the Court will not in any way prejudice the accused and that it would not affect the case of prosecution in any.

manner. The observation of the Supreme Court is as follows:

Undoubtedly, there was a delay of about five days in sending the sealed parcels containing the gun of Niranjan Singh and the empty ''crime''

cartridges to the Judicial Malkhana, but this could be only a routine delay and nothing sinister could be read into it, unless it was shown that the

police had any hostile animus or motive to implicate this accused falsely"".

i) In the absence of any material to show that the delay of three days was caused in order to fabricate the documents by the Police Officers, who

got hostile attitude against the accused, it cannot be said that three days delay in receipt of the material objects by the Court would affect the

prosecution case. As far as the statements recorded u/s 161 of Code of Criminal Procedure, it can be filed even at the time of filing the charge

sheet. So. as regards the filing of statements recorded u/s 161 of Crl.P.C, there is no delay at all.

Therefore, we are of the firm opinion that the learned trial Judge has rejected the prosecution case, on misreading of the evidence, that too, on

filmsy grounds and took entirely an unreasonable view, resulting in the patent miscarriage of justice.

Thus, the trial Judge, while deciding the case on irrelevant consideration, committed the most serious error, by acquitting the accused, in a case

in which murder was committed in a broad-day light in the main bazaar, in the presence of public by the accused, who were caught red-handed by

the Police Constables. The conclusions arrived at by the trial Court, in acquitting the Respondents accused are not only unreasonable, but the same

are vitiated by the manifest illegality. In other words, it may be said, that these conclusions are such, which could not have been possibly arrived at

by any Court acting reasonably and judiciously, and which could be characterised as perverse. The reasonings given by the trial Court are not only

quite contrary to the weight of evidence, but the fact is that the relevant and reliable evidence on record has been totally lost sight of, ignored and

brushed aside, for the reasons which are wholly unsustainable. In the Judgment, like this, with full of perversity, the interference is quite imperative

or else the existence of the appellate powers would be rendered meaningless. As Apex Court, observed in strong terms, if there are glaring

infirmities in the judgment of the trial Court, resulting in a gross-miscarriage of Justice, it is the duty of this Court, to interfere, especially when this

Court, takes a view, that the entire approach of the trial Court in dealing with the evidence is patently illegal, and the conclusions arrived at by it are

all wholly untenable.

We are aware as per the rule of practice, ordinarily this Court should not interfere with the judgment of acquittal on a mere reappreciation of

evidence. But, if there are glaring infirmities in the judgment of the trial Court, resulting in gross-mis-carriage of Justice, as discussed above, on

reappreciation of the evidence available on record, this Court will set aside the order of acquittal and in fact, it is its duty to do so, especially when

no other view is possible. So, this Court holds for the reasons recorded earlier, the order of acquittal cannot at all be sustained. In order to find out

whether any other view is possible, on the basis of the evidence available on record, this Court is to indulge in the reappraisal and reappreciation of

the materials available on record to arrive at a proper conclusion.

The motive is this: (a) P.W.8 - Murugeswari, the daughter of the deceased, P.W.9 - Amma Ponnu, the neighbour and P.W.11 - Boomibalan,

a resident in the opposite house of the deceased, speak about the motive.

As discussed earlier, the occurrence took place in the day light at 12.30 P.M., in the main bazaar. The eye-witnesses, viz. P. Ws. 1, 3 and 4

caught the accused persons red-handed and snatched the weapons M. Os. 1 and 2 from them at the spot itself. As alert and dutiful officers, on

seeing the gruesome attack, one set of police constables took the victim to the Government Rajaji Hospital, Madurai, in order to save the life of the

victim and another set of Police Constables took the accused to the Police station. In fact, though the accused with their weapons in their hands

threatened the Police Constables that they would kill them if they come near to them, the Police Constables took risk of their life and caught the

accused at the spot itself. Both the victim and the accused were strangers to these eye witnesses, viz. P. Ws. 1, 3 to 6. Though P.W.3 Raman

Pillai, knew the accused previously, there is no enmity against them, to speak falsehood against the accused. The very fact that P.W.1 in his

complaint, which was attested by P. Ws. 3 and 4 has not mentioned the name of the victim, would clearly show that these witnesses are natural

witnesses, whose testimony could be relied upon without any hesitation.

A careful reading of the evidence of the eye-witnesses, which is amply corroborated by the medical evidence, would lead to the definite

conclusion that the occurrence had taken place in the, manner alleged by the prosecution and the accused 1 and 2 alone were the perpetrators of

the crime. Throughout the fabric of the prosecution case, there is a rink of truth.

The trial Court has completely ignored the acceptable and abundant materials produced through these witnesses. Therefore; we consider it

necessary to render that the trial Judge was uncharitable in discarding the testimony of the evidence of the Police Constables, who have done their

duty promptly and effectively, without appreciating their evidence. So, we have no hesitation to hold that the entire approach of the trial Court in

dealing with the evidence was patently illegal and the conclusions arrived at by it are wholly untenable. Since the view taken by the trial Court is not

a possible view, the only conclusion that could be arrived at in the light of the facts and circumstances narrated earlier is that the murder was

committed by the accused 1 and 2, as projected by the prosecution.

Mr. S. Ashok Kumar, learned Counsel for the Respondents/ accused would contend besides the grounds of acquittal incorporated in the

judgment of the trial Court, there are other grounds available in the record to sustain the judgment of acquittal, which were not referred to,by the

trial Court, which we shall deal with one by one.

The learned Counsel for the Respondents submits that Ex.D.2 entry in the General Diary relating to the permission granted to the Police

Constables for lunch was created only in order to fix the presence of the Police Constables in the place of occurrence to suit the case of

prosecution.

Secondly, the learned Counsel for the Respondents/accused submits that in the complaint Ex.P.1, P.C. No. 2283, it was originally written as

first informant, and later corrected into P.C.2285 (P.W.1), since P.C. No. 2283 which relate to one another Balakrishnan was not amenable for

giving a false complaint. Factually there is no correction. When P.W.1 was questioned about this, he emphatically denied that there is a correction

of P.C. No. 2283 into P.C.2285. A perusal of the said complaint Ex.P.1 would also show that there is no such correction as stated by the counsel

for the Respondent. It is relevant to note at this juncture that the correction of 13.00 Hours to 13.30 Hours in Ex.D.2 entry in the General Diary

Ex.D.3 was admitted by P.W. 13 Sub Inspector of Police, for which proper explanation was given, whereas regarding the alleged correction in the

complaint Ex.P.l, P.W.1 - Balakrishnan, P.C. No. 2285 emphatically stated that there is no correction of P.CNo. 2283 was permitted to P.C.

No. 2285. Moreover, in Ex.D.2 entry, it is clearly mentioned that P.W.1- Balakrishnan, P.C. No. 2285 was permitted to go for lunch along with

other Police Constables. In that document Ex.D.2, P.C. No. 2283 was not mentioned. As such, this submission has no foundation.

The counsel further submits that even according to the witnesses, though number of persons were present at the time of occurrence, namely,

fruit vendors and persons found at the shops, they were not examined. There are totally five eye-witnesses in this case. Apart from P. Ws.l, 4 to 6,

the Police Constables, P.W.3 - Raman Pillai, working in Vaigai Lodge, situate opposite to the place of occurrence was also examined. It is not

necessary for the prosecution to examine all the persons present during the time and at the place of occurrence. Moreover, all the witnesses

examined during inquest were examined in the Court also. It has been pointed out, as already been discussed, while considering the reasoning

given by the learned trial Judge, there cannot be any grievance due to the non-examination of the other persons present at the shops near the scene

of occurrence.

The learned Counsel for the Respondents submitted that the evidence of P.W.3 would show that there was a separate athatchi for the

recovery of weapons of crime and there was a separate complaint signed by P.W.3. However, those documents were not marked and the same

were suppressed.

a) A close reading of the chief and cross-examination of P.W.3 would reveal that the fact of handing over of weapons by P.W.1 -Balakrishnan,

P.C. No. 2285 to P.W. 13 - Sub-Inspector of Police, has been mentioned in Ex.P.1 complaint itself and in that document, P.W.3 signed as one of

the attesting witnesses. It is not the evidence of P.W.3 that apart from the complaint Ex.P.1, given by P.W.1 -Balakrishnan, P.C. No. 2285,

attested by him, some other report was prepared on the basis of his statement by P.W. 13 Sub-Inspector of Police and his signature was obtained

therein. So, this submission also does not merit acceptance.

Much was said about the various irregularities committed by P.W.13 - Sub Inspector of Police, during the course of investigation. He admits

that at page No. 25 in Ex.D.3 General Diary, two sheets, were kept blank and that the original page No. 24 was not sent to the Inspector of

Police. But the learned Counsel for the Respondents is not able to explain, as to how these omissions would affect the prosecution case and how

the accused were prejudiced, due to this.

The learned Counsel for the Respondents would further argue that while P.W.1 would state that the accused stabbed on various parts of the

body of the deceased from upwards to downwards, P.W. 14 - Doctor stated that the injury No. 7 would have been caused while stabbing from

downwards to upwards and so the ocular evidence is contrary to the evidence of the Doctor - P.W.14.

Lastly the learned Counsel for the Respondents/ accused pointed out that there is a correction in Ex.D.4 athatchi, for sending the recovered

knives by striking the word ""Section 307"" and writing over the same as ""Section 302, I.P.C"". of course, when it was suggested to P.W. 13- Sub

Inspector of Police that there was a correction of Section 307, I.P.C. into Section 302, I.P.C, he denied the same. Even assuming that there is a

correction, it would not affect the case of the prosecution, since the case was registered originally u/s 307, I.P.C at 12.45 P.M. and altered the

same into Section 302 I.P.C. immediately on receipt of the death intimation at 1.15 P.M. As such, there was no time gap. That was the reason

why P.W. 13 - Sub Inspector of Police would fairly admit that he sent Ex.P.9 First Information Report registered u/s 307 of Indian Penal Code at

12.45 P.M. and Express Report Ex.P.10 altering the Section 307 I.P.C. into Section 302 I.P.C. prepared at 1.15 P.M., both together to the

Magistrate. So, all these points raised by the counsel for the Respondents would not be enough to discard the substantial materials adduced by the

prosecution.

We shall now deal with the citations referred by the counsel for the Respondents, in support of his submissions regarding the fact of

irregularities in the investigation.

a) The first decision is reported in Muthuswami Vs. State of Madras, ). This decision deals with the case where the identification parade was held

2 1/2 months after the events and wherein the Supreme Court has held that the suspect must have been pointed out to the witnesses before the

parade and the same destroys the value of the investigation.

b) The second decision reported in Santa Singh Vs. The State of Punjab, deals with a case, in which inordinate delay was caused in sending the

sealed parcels of empty cartridge case recovered from the house of the accused, for the opinion of the ballistic expert and that though the accused

was arrested on 14.9.1954, he was brought to the Police Station only on 21.9.1954. In the light of the above facts of that case, the Supreme

Court held that delay could be considered as a suspicious feature.

The decisions referred to above by the learned Counsel for the Respondents are not applicable to this case on hand as it stands on a different

footing. In this case, the articles recovered and the athatchi were sent within three days and the accused who were caught red-handed was

produced immediately before the Police, as such there is no suspicious feature in this case. In this context, as referred to earlier, In Nath Singh and

Ors. v. State of U.P. (1980 S.C.C. (Crl.) 968), the Supreme Court clearly held that the delay of five days in sending the sealed parcel containing

guns and empty cartridges to the Judicial Magistrate could only be a routine delay and that nothing sinister could be read into it, unless it was

shown that the Police had any hostile animus or motive to implicate the accused falsely.

As discussed earlier, in this case, there is no hostile animus or motive on the part of the police, which is not even suggested to them to implicate

the accused in this case.

In reply to the submission, made by learned Counsel for the Respondents, the learned Public Prosecutor cited a decision reported in State of

Rajasthan v. Kishore (1996 S.C.C. (Crl.) 646), wherein it has been observed as follows:

It is equally true that the investigating officer P.W.8 committed grave irregularity in omitting to send the burnt clothes and other incriminating

materials for chemical examination to lend corroboration to the evidence. Mere fact that the Investigating Officer committed irregularity or illegality

during the course of the investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast

aside to record acquittal on that account

In view of these decisions, the trivial irregularity that has been pointed out by the learned Counsel for the Respondents/ accused on the strength of

the decisions cited by him, would be of no significance.

Learned Counsel for the Respondents/ accused relied upon some more decisions, in support of his submission Ram Narain Singh Vs. State of

Punjab, ). The facts in this case is that the time of occurrence was shifted from 8.00 P.M. to 6.30 P.M., only with a view to suit the medical

evidence, which shows that undigested food was found in the stomach of the deceased and that according to the Doctor, the deceased must have

taken his food only five minutes before his death. In that context, the Apex Court held that the evidence of the witnesses for the prosecution is

totally inconsistent with the medical evidence.

a) The second decision is reported in Mohar Singh and Others Vs. State of Punjab, In this case, the prosecution case was not believed because

the witnesses stated that the deceased was attacked by the accused with a spade, but the Doctor, who held the autopsy stated that the injuries

could have been caused by Kassi and not by the spade and that though the dying declaration reveals the detailed account of the occurrence, the

Doctor stated that the deceased could not speak as he was in a serious condition.

b) The third decision is reported in Awadhesh and Anr Vs. State of Madhya Pradesh, the facts of this case is that the deceased got gun shot injury,

when he was at a higher level at the well, whereas the assailants fired the shot from Bari, which was at the lower level by one foot from the road by

two or two and a half feet. In the opinion of the doctor, the person who caused the injury to the deceased must have been at the higher level than

that of the deceased and in that fact situation, the Supreme Court held that the medical evidence was wholly inconsistent with the testimony of eye-

witnesses. It is also observed in this decision, though medical expert''s opinion is not always final and binding, it corroborates other circumstances

which indicate that the eye-witnesses had not seen the actual occurrence.

Therefore, all the above three decisions will not apply to the facts of the present case, as the inconsistency pointed out by the learned Counsel

for the Respondents/ accused was so minor, as discussed in the earlier paragraphs.

Further, the learned Public Prosecutor cited a decision reported in Anvaruddin and others Vs. Shakoor and others, , in which the Supreme

Court has held as follows:

Where the expert evidence is obscure and oscillating it is not proper to discredit the direct testimony of the eye-witnesses on such uncertain

evidence. In such a situation unless the evidence of the eye-witnesses is shaken by some glaring infirmities, it would not be proper to doubt the

corrections of their statements"".

a) The other decision cited by the learned Public Prosecutor is reported in State of U.P. Vs. Krishna Gopal and Another, where in it has been

observed as under:

t is trite that where the eye-witnesses account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted

as conclusive. Witnesses are the eyes and ears of justice. Hence, the importance and primacy of the quality of the trial process. Eye witnesses

account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudiced making any

other evidence, including medical evidence, as the sole touch-stone for the test of such credibility. The evidence must be tested for its probability of

the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts; the ""credit"" of the

witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be

put into the scales for a cumulative evaluation"".

b) The next decision cited by the learned Public Prosecutor is reported in Nirpal Singh and Others Vs. State of Haryana, ). In that case, the

Doctor found two injuries as ante-mortem. But P.W.3 says that Jagmohan Singh, the accused in that case, fired only one shot at the deceased and

after the deceased died due to the first shot, the said Jagmohan Singh came again and fired another shot. So, the story that the deceased was fired

at after his death is falsified, when the Doctor found that both the injuries were ante-mortem. Despite this infirmity, the Supreme Court observed

that it is not of a serious nature, so as to render the prosecution case impossible of belief. It is observed that having regard to the manner in which

the occurrence took place, the brutal and ghastly actions of the Appellants, who were bent upon taking the lives of one person after the other, it

would be impossible for any of the witness to give a meticulous account of the nature or the number of shots fired by the Appellants.

So, in the light of these decisions, mere discrepancy or minor inconsistency, in each and every case would not be a factor, which could be

considered fatal to the prosecution case, as in this case. The evidence of ocular witnesses in this case, who have no animosity against the accused

persons, or any interest in the victim, would lead to the conclusion that ghastly crime was committed by the Respondents/ accused in the manner

alleged by them.

No hard and fast rule of universal application with regard to the reaction of a person in a given circumstance can be laid down. In these

situations, there may be persons, who may react by shouting for help while others may even choose to quietly slip away from the place of

occurrence, giving an impression as if they have seen nothing with a view to avoid their involvement, in any way with the occurrence. Yet, there

may be persons, who may be so daring, hazardous and chivalrous enough to come forward unhesitantly and jump in the fray at the peril of their

own life with a zeal to scare away the assailants and save the victim from further attack. In this case, P. Ws.l, 4 to 6 viz. P.W.1 -Balakrishnan,

P.C. No. 2285, P.W.4 - Ponnusami, P.C. No. 1021, P.W.5 - Nagaiyasami, P.C. No. 1933 and P.W.6 - Ahamed Ghani, P.C. No. 1776, who

are Police Constables while they were in hungry, though they were in mufti and did not possess any weapon, jumped into the fray at the peril of

their own life with a zeal to catch the accused and to save the victim from the jaws of death, which in our considered view, highly commendable

and appreciable.

A dastardly daylight murder, on the public highway, a culmination of a masterly pre-plan, as narrated clearly by the prosecution, is bound to

shock the conscience of anyone, reasonable. In the legal parlance, in criminal jurisprudence, the theory of benefit of doubt, does not and cannot

relate to any and every discrepancy, which most often surface, even in true cases and more so when they do not affect the foundational core of the

prosecution. The doubt the deserves the benefit is one that gets indelibly impressed in a mind reasonable and not one that arises of whim or

caprice, of a fickle mind, which tends to rubber- stamp, even the not non-expected variations, as grave yards of doubt. We have already spelt out

the reasons, for our intended conclusion, that the only view possible on the evidence available, is that the Respondents/ accused 1 and 2 are guilty

of murder and any other contra view is totally and absolutely not feasible or plausible even on theories of farfetched hallucinations.

Here is a case, where four police constables, who were on their way to Saratha Mess, to take their lunch, on that particular day, during

occurrence time, had the occasion to witness this cold blooded attack on a woman, who was proceeding to exchange her saree from the shop, she

had purchased it earlier, for use on the festive Deepavali day. Though the motive cannot be categorized either as strong or weak, the fact remains,

that it takes the back stage, when overwhelming and acceptable, ocular evidence stares at us. We quite often come across, hesitations and refusals

in police stations, to receive first information reports, even in cognizable cases of a grave nature, quoting lack of jurisdiction vis-a-vis, the scene

spot. When such a tendency is predominantly prevalent, the instinctive consciousness of these four police constables, not then apparently involved

in public duty, in two of them taking the victim to the Hospital, while the other two Police Constables engaged themselves in apprehending the

Respondents, on what is called, red-handed catching and handing them over at the Police Station, with a first information volunteered by one of

them, attested by another and an independent witness, even if we assume that these police constables are not independent, though that is not our

view in this appeal, certainly credits commendation.

The authorities concerned, we are sure will take note of our observations, while scruitnising their service records for promotion laddering up,

for the spontaneous action of these Constables, in these days, when witnesses shun the box, for a variety of reasons, deserves to be underlined.

They had no reason to support one side and of being partisan to the other side. The swift action taken by them get endorsed by written records

maintained in the usual course of business at the hospital and the police station.

When circumstances, plus direct evidence, point unerringly, the guilt of the Respondents beyond any pale of doubt, it will be outrageous to

reject the naked certainly not dressed up prosecution case, which throughout, in our opinion proclaims its truthfulness. We are so anguished at the

exoneration of the Respondents, by the trial Court on grounds palpably unsound, which do not stand the best of scrutiny on reasonableness, even

of the minimum standard, that we are constrained to hold, after exercising expected judicial restraint, this being an appeal against acquittal, that it

appears that the judicial conscience of the learned trial Judge in the instant case, had apparently taken a holiday. We refrain from saying more, for

the abundance of public confidence in the judicial system shall have to be preserved and not belittled. Therefore, we do not wish to commend on

this further. But we would express our deep dissatisfaction in the manner and the way, in which the judgment has been written in this case, by the

Sessions Judge.

Therefore, with a full sense of responsibility, while we hold that the testimony of these Police Constables, is credible and trustworthy, we

recommend to the Government, as a token of appreciation of their adventurous service, to grant award to these Police Constables, Viz. P. Ws. 1,

4 to 6, so as to encourage these dutiful police personnel to continue to be an example to the State Police. It is to be recalled at this juncture, that

once the Tamil Nadu Police was considered to be brave and honest, equivalent to Scotland Police. Now, these Police Constables, who are

considered to be the eyes and ears of justice, as in this case, restored and regained to a certain extent, the old image and reputation of Tamil Nadu

Police. However, any number of awards or any amount of promotions for these Police Constables would not equate to the humane consideration

shown by P.W.5 - Nagaiyasami, P.C. No. 1933 and P.W.6 - Ahamed Ghani, P.C. No. 1776, in taking the victim immediately to the Hospital and

the courageous and effective steps taken by P.W.1 - Balakrishnan, P.C. No. 2285, and P.W.4 - Ponnusami, P.C. No. 1021, in catching the

accused 1 and 2 at the every next moment of the commission of the crime. So, we whole heartedly appreciate them for their meritorious and brave

service.

We record our appreciation for the effective submissions in a lucid fashion made by Mr. R. Shanmugha Sundaram, learned Public Prosecutor

in bringing out the various circumstances, to hold that the reasons given by the trial Court are manifestly wrong, and pointing out the materials which

are in abundance. We also place on record, the valuable assistance rendered by Mr. S. Ashok Kumar, learned Counsel for the Respondents, by

putting forth the points in support of defence effectively and elaborately.

In view of the foregoing analysis, in conclusion, we feel that the judgment of the trial Court with full of infirmities is liable to be set aside.

Accordingly, the same is set aside. As such, Respondents 1 and 2 are hereby convicted for the offence u/s 302 read with Section 34 of Indian

Penal Code.

Today the Respondents are present. They have been questioned regarding sentence and informed that since they have been convicted u/s 302

read with 34 of Indian Penal Code whether they have to be sentenced to imprisonment for life or to death. The first Respondent would submit that

after the occurrence was over he got married and some children have been given birth and he had to look after his aged mother and request this

Court to consider the circumstances and sentence of life imprisonment might be imposed. Similarly, the 2nd Respondent also would submit that he

has got an aged mother and children to be looked after. Mr. Ashok Kumar, the learned Counsel for the Respondents also would submit that this

would not come under the category of the rarest of rare cases and so death sentence may not be imposed on the Respondents. He would also

submit that the occurrence had taken place in the year 1983. Now it is about 13 years over. So, he requested the Court to consider the sentence

by imposing only life imprisonment.

of course, it is a case of brutal murder committed by the Respondents 1 and 2 in the day light in the presence of the witnesses. The motive for

the occurrence is that the 1st Respondent''s sister was insulted on the earlier day in a cinema theatre. So, having got provoked, the first

Respondent with the help of the 2nd Respondent came to the bazaar and committed the murder. So in these circumstances, considering the

submissions made by the Respondents 1 and 2 and their counsel, since we feel that this case would not come under the rarest of rare cases, as

held by the Supreme Court, the interests of justice would be met if life sentence is imposed on the Respondents 1 and 2.

So with these observations, the appeal is allowed. The Respondents 1 and 2 are convicted u/s 302 read with 34 of Indian Penal Code and

sentenced to undergo life imprisonment.