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2012 (10) TMI 1202

anian, Advocates For The Respondents : Guru Krishna Kumar, AAG, B. Balaji, Prasana Venkat and Veeramani, Advocates JUDGMENT Ranjan Gogoi, J. 1. This appeal, Under Section 379 of the Code of Criminal Procedure, 1973 is against the order of the High Court of Madras reversing the acquittal of the Appellants and convicting and sentencing each one of them under different Sections of the Indian Penal Code (hereinafter shall be referred to as 'Indian Penal Code'). All the accused persons have been convicted Under Section 120B of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of seven years each. The accused Appellants have also been found guilty Under Section 302 of Indian Penal Code for their individual acts or constructively Under Section 34/149 Indian Penal Code for commission of the said offence. They have been accordingly sentenced to undergo rigorous imprisonment for life. Some of the Appellants have also been found guilty of the offences Under Section 148 and Section 332 read with Section 149 Indian Penal Code for which sentence of rigorous imprisonment of three years have been imposed. Aggrieved the present appeal has been filed. 2. For t .....

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Hospital and on an intimation being sent by PW-20 Dr. Rajaram (Raj Mohan), Assistant Civil Surgeon attached to Government Hospital, the learned Judicial Magistrate (PW-6) came to the hospital to record the dying declaration of the injured, Veeraperumal. According to the prosecution, while his statement was being recorded, D-1, slipped into a coma and, thereafter, died at about 4.07 p.m. The dying declaration (Exh. P-4) was recorded in the presence of Paulsama, Medical Officer (PW-21) who had certified that the injured (D-1) was in a fit condition to make the statement. It is the further case of the prosecution that the other injured namely, Karumpulli and Madasamy were also brought to the hospital but had died on the way. It is further alleged by the prosecution that D-1 and D-2 were brought to the court complex from the jail premises by Police Constables Sankaranarayanan (PW-5) and Shanmugaraj (PW-7). Both the aforesaid police constables, according to the prosecution, were eye-witnesses to the occurrence and they had submitted a report to the Judicial Magistrate, Vilathikulam (Ex. P-2) in this regard. The prosecution has further alleged that in the course of the attack by A-1 Thir .....

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nce of PW-5 and PW-7, the Police constables who had escorted D-1 and D-2 to the court complex from the prison, was elaborately considered by the learned trial court before coming to the conclusion that the evidence of the two aforesaid witnesses did not inspire the confidence of the court. The detailed reasons which had persuaded the trial court to take the above view will be noticed in the discussions that will follow. 5. Coming to Ex. P-1, (complaint lodged by D-1 in the police station immediately after the incident) and the formal FIR lodged on that basis (Ex. P-22) the learned trial court was of the opinion that the said documents do not accurately reflect the situation as claimed to have taken place in view of the fact that FIR Under Section 302 Indian Penal Code was registered at 3.15 pm when the victims of the alleged assault were still alive. 6. In so far as Ex. P-2, i.e., the report lodged by PWs-5 and 7 before the Judicial Magistrate is concerned, the learned trial court was of the view that the involvement of any of the accused have not been mentioned in the said report which renders the same open to grave suspicion and doubt, besides affecting the oral testimony of PW-5 .....

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idered in an equally elaborate and exhaustive discourse by the High Court in the appeal filed by the State of Tamil Nadu. In so far as the charge Under Section 120B is concerned, the High Court was of the view that the materials on record had established that all the accused persons (except A-14, A-15 and A-16) had come to the court complex armed with dangerous weapons which was indiscriminately used on the victims merely at the call of A-14 to A-16. The said evidence, according to the High Court, conclusively proved the commission of the offence Under Section 120B of the Indian Penal Code. The High Court was of the view that such a conclusion is the inevitable result of the process of inference by which proof of commission of the offence of criminal conspiracy was required to be reached in the present case. 10. In so far as the other offences are concerned, the High Court, after noticing the evidence adduced by the prosecution witnesses and the several documents brought on record, took the view that PW-2, PW-3 and PW-4, though were declared hostile, had supported the prosecution, at least to the extent that the three deceased persons and all the convicted accused were present in t .....

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in the course of the trial. 13. Before proceeding any further it will be useful to recall the broad principles of law governing the power of the High Court Under Section 378 Code of Criminal Procedure, while hearing an appeal against an order of acquittal passed by a trial Judge. 14. An early but exhaustive consideration of the law in this regard is to be found in the decision of Sheo Swarup v. King Emperor AIR 1934 PC 227 (2) wherein it was held that the power of the High Court extends to a review of the entire evidence on the basis of which the order of acquittal had been passed by the trial court and thereafter to reach the necessary conclusion as to whether order of acquittal is required to be maintained or not. In the opinion of the Privy Council no limitation on the exercise of power of the High Court in this regard has been imposed by the Code though certain principles are required to be kept in mind by the High Court while exercising jurisdiction in an appeal against an order of acquittal. The following two passages from the report in Sheo Swarup (supra) adequately sum up the situation: There is in their opinion no foundation for the view, apparently supported by the judgm .....

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a) is to be found in para 42 of the report in Chandrappa and Ors. v. State of Karnataka 2007 : 2007 (4) SCC 415. The same may, therefore, be usefully noticed below: 42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, substantial and compelling reasons , good and sufficient grounds , very strong circumstances , distorted conclusions , glaring mistakes , etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the .....

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t, and the accused is sentenced to death, or life imprisonment or imprisonment for more than 10 years, then the right of appeal of the accused is treated as an absolute right subject to the provisions of Articles 134(1)(a) and 134(1)(b) of the Constitution of India and Section 379 of the Code of Criminal Procedure, 1973. In light of this, it is obvious that an appeal against acquittal is considered on slightly different parameters compared to an ordinary appeal preferred to this Court. 18. Having dealt with the principles of law that ought to be kept in mind while considering an appeal against an order of acquittal passed by the trial court, we may now proceed to examine the reasons recorded by the trial court for acquitting the accused in the present case and those that prevailed with the High Court in reversing the said conclusion and in convicting and sentencing the accused Appellants. 19. Insofar as the charge of criminal conspiracy Under Section 120B Indian Penal Code is concerned, there is no doubt and dispute that to prove the said charge the prosecution had examined PWs 15, 16 and 17 who did not support the prosecution case in any manner at all. In fact, each of the aforesa .....

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ect of the case with regard to the plea of alibi set up by A-4 and A-12 can be conveniently dealt with at this stage. The plea of alibi set up on behalf of the aforesaid two accused on the basis of the evidence of DWs-1, 2 and 3 was accepted by the learned trial court by holding that the defence evidence tendered in the case had established that at the time of the occurrence A-12 was in the ITI, Tuticorin whereas A-4 was in the office of the Sub-Registrar, Tuticorin. Reading the evidence of DWs-1, 2 and 3 and the documents exhibited in this regard (Ex. D-4, D-5, D-8, D-9, D-10) it is possible to take a view that aforesaid two accused were not present at the place of occurrence at the relevant time. The High Court answered the aforesaid issue by stating that as it was admitted by DW-1 in cross-examination that a student could leave the college after being marked present in the attendance register and as the sale deed (Ex. D-5) claimed to have been executed by A-4 in Tuticorin at the time of the incident did not specify the time of execution, the plea of alibi set up by A-4 and A-12 was not satisfactorily proved. The exercise undertaken by the High Court, once again, overlooks the ba .....

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ho had escorted D-1 and D-2 to the court complex. On such consideration, the learned trial court came to the finding that the evidence of PW-5 regarding pelting of stones on him and PW-7 by some of the accused was unacceptable as no resultant injuries are recorded in the wound certificates (Ex. P-15 and P-16). In this regard, the learned trial court also noticed that the injuries mentioned in the aforesaid wound certificates were caused by aruval and knife and, further, that neither PW-5 nor PW-7 had informed the doctor about any injuries being caused by pelting of stones. The apparently false involvement of A-20 to A-23 in the incident made by PWs-5 and 7; the wrong identification of several of the accused made in court by PW-5 and PW-7; the absence of any test identification parade are the other circumstances that was taken note of by the learned trial court to arrive at the conclusion that the evidence of PW-5 and PW-7 is not reliable. The injuries on PW-5 claimed to have been caused by an aruval was also found by the learned trial court not to be free from doubt or ambiguity. This is because, according to PW-5, he had tried to prevent the blow dealt with the aruval by A-17, whi .....

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e acquittal could have been made by the High Court only if the conclusions recorded by the learned trial court did not reflect a possible view. It must be emphasized that the inhibition to interfere must be perceived only in a situation where the view taken by the trial court is not a possible view. The use of the expression possible view is conscious and not without good reasons. The said expression is in contradistinction to expressions such as erroneous view or wrong view which, at first blush, may seem to convey a similar meaning though a fine and subtle difference would be clearly discernible. 26. The expressions erroneous , wrong and possible are defined in the Oxford English dictionary in the following terms: erroneous: wrong; incorrect. wrong: 1. not correct or true, mistaken 2. unjust, dishonest or immoral possible: 1. capable of existing, happening, or being achieved. 2. that may exist or happen, but that is not certain or probable. 27. It will be necessary for us to emphasize that a possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may .....

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lation and it is the reasons for the conviction of the accused Appellants Under Section 302 and the other provisions of the Indian Penal Code will be required to be noticed by us. 30. The High Court has concluded that the evidence of PW-1, PW-2, PW-3 and PW-4 have supported the prosecution case to a certain extent and the said fact could not have been ignored only because PW-2, PW-3 and PW-4 were declared hostile. Even if the aforesaid reasoning of the High Court is to be accepted what would logically follow therefrom is that the evidence of PW-1, PW-2, PW-3 and PW-4, at best, shows the presence of the convicted accused and the deceased at the place of occurrence on the day of the incident. In so far as the evidence of PW-5 and PW-7 is concerned, the High Court was of the view that the failure to mention the names of any of the convicted accused in Ex. P-2 can be explained by the fact that PW-5 and PW-7 must have been in a state of shock and, furthermore, Ex. P-2 was a report to the Magistrate, not of the incident as such, but a report of what had happened to the prisoners who were brought by PW-5 and PW-7 from the jail for production in the court. The errors on the part of PW-5 an .....

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