High Court Of Judicature At Madras

Mohamed Nagoor Meeran V. The State And Others

Criminal Revision No. 91 Of 1992. 27-09-1994

JUDGMENT

This revision is against the order of acquittal of the learned II Additional Sessions Judge, Tirunelveli, in C.A. No. 148 of 1989 reversing the findings of the Assistant Sessions Judge, Tenkasi, in S.C. No. 326 of 1985. The respondents herein and three others were prosecuted before the Assistant Sessions Judge, Tenkasi, for the offence under Sections 457, 395 read with Section 397, indian Penal Code. The prosecution alleged that on 13-4-1985, the accused person broke open the lock of door No. 61 Periyapallivasal Street, Kallidaikurichi, belonging to P.W. 8, in spite of the obstruction of P.W. 1 and threatening with dangerous weapons, removed the cash and jewels worth Rs. 17,-73, which were later recovered on the arrest of the third accused who gave a statement leading to the recovery of those articles. The prosecution examined 11 witnesses of whom P.Ws. 1, 2, 4 and 5 are the eye-witnesses to the occurrence, P.W. 3, the Village Administrative Officer spoke about the recovery of the kerosene light and match sticks in the house where the alleged dacoity was committed, P.Ws. 6 and 7 have spoken about the possession of the house by its owner P.W. 8, P.W. 9 as spoken about the arrest and confession of the third accused leading to the recovery of the articles. P.Ws. 10 and 11 are the police officials evidencing the registration of the case and investigation. The learned Assistant Sessions Judge accepted the prosecution case so far as the accused 1 to 3 are concerned and convicted them to undergo rigorous imprisonment for one year and to pay a fine of Rs. 100 for the offence under Section 457 Indian Penal Code and also convicted them to undergo rigorous imprisonment for 3 years and pay a fine of Rs. 500/- each for the offence under Section 392 Indian Penal Code and acquitted the accused 4 to 6. But on appeal before the learned II Additional Sessions Judge, he has found that the evidence against the accused persons are artifical and unbelievable and therefore set aside the conviction and sentence on these respondents and acquitted them of all charges. Hence, P.W. 1 has come forward with this private revision against the acquittal of the respondents 2 to 4.

2. The learned counsel for the revision petitioner Mr. Karpagavinayagam, referring to the decisions of this Court and also the Supreme Court, would contend that when the Court has not applied its mind on the evidence and the findings are faulty leading to failure of justice, the revisional Court has to interfere to set right the infirmity in the administration of justice. The learned counsel referred to the decision in Chellammal v. Packiam 1976 Mad LW (Cri.) 55 : (1976 Cri LJ 1966) wherein this Court has held that when the acquittal of the accused person suffers from a manifest illegality in overlooking the material evidence of the witnesses, resulting in gross injustice, the interest of justice to require that the High Court should interfere with the order of acquittal. In Marappa Gounder v. Venkatachalm 1983 Mad. LW (Crl.) 1 : (1983 Cri LJ NOC 112) it is observed that though generally the High Court, while sitting in its revisional jurisdiction will not incline to interfere with an order of acquittal that too at the instance of a private party when the State has not preferred any appeal, if the facts and circumstances of the case warrant an interference by exercising extraordinary discretionary power vested in the Court in aid of justice, the order of acquittal has to be set aside to set right the grave injustice. The Supreme Court also in Akalu Ahir v. Ramdeo Ram 1974 Mad. LJ (Cri.) 168 : (1973 Cri LJ 1404) has held that the High Court, while exercising the revisional powers, should refrain from interfering except when there is a glaring defect of a serious nature which has resulted in grave failure of justice. Therefore, the dictum of these decisions is that when the mistake in the decision is glaring causing the failure of justice, certainly the revisional Court has to exercise its jurisdiction interfering with the findings of the Court below. Therefore, the revision petitioner, has to establish that there is glaring mistake in the order of the learned II Additional Sessions Judge, Tirunelveli. The learned Judge has given series of reasons for disbelieving the evidence of the witnesses on the the prosecution side, especially the eye-witnesses, and the improbability in the prosecution case.

3. Before we proceed to consider the merit of the grounds of this revision, I have to mention that the house in which the dacoity is said to have been committed by the respondents was in the occupation of the first accused/first respondent. It is also the case of the prosecution that P.W. 8, who is the owner of this house viz. No. 61, Periyapallivasal Street, Kallidaikurichi, and who is a resident of Madras, had allowed the first accused/first respondent to occupy this house some time ago and even according to the prosecution case, the first accused was in possession of this house till 15-1-85. The version of P.W. 8 is that he allowed the first accused/first respondent to occupy the house temporarily for some time with a condition that he should vacate the house whenever required by him. But, even before this alleged occurrence, the first accused was contending that he is a tenant of this building on a monthly rent of Rs. 60/- and therefore he is entitled to the statutory rights of a tenant. As a matter of fact, P.W. 8, the owner of the building, wrote the letters Exs. D-1 and D-2 requesting the first accused to vacate the house and later on sent the notice Ex. D-3 through his advocate to vacate the house otherwise he would take legal action to vacate him. The first accused sent the reply under the original of Ex. D-4 on 1-7-84, i.e. even one year before this occurrence, that he is a statutory tenant in possession of the building and, therefore, he is not bound to vacate the building. Therefore, it is an admitted fact that the first accused was in possession of this building even in January 1985. But the prosecution case is that, P.W. 8, who came from Madras to Kallidaikurichi, in connection with the marriage of his close relation, arranged for a panchayat on 15-1-85 and in the panchayat, the first accused agreed to vacate the house and he also executed a document under the original of Ex. P-5 admitting the surrender of possession of the building to P.W. 8. P.W. 8 has deposed that he took possession of the building on 15-1-85 and celebrated a function in connection with the marriage of his close relation on 17-1-1985 in this building and left for Madras keeping the house locked, under the supervision of his father-in-law P.W. 1. It is the the prosecution case that on 13-4-85 night, these respondents and three others committed dacoity in this house by break opening the lock. The accused 1 and 2 are brothers and the third accused is the son-in-law of the first accused. The fourth accused is the son of the first accused and accused 5 and 6 are the wives of accused 1 and 2 respectively.

4. The Lower Appellate Court has thoroughly considered the evidence and has found that there is no satisfactory evidence for the surrender of possession of the building by the first accused to P.W. 8. The first accused, who was in possession of the property, has claimed to be a statutory tenant of the property and he also sent the reply notice under Exs. D-4 that he was not bound to surrender possession as he is a statutory tenant. However, P.W. 8 would state that the first accused surrendered possession before the panchayatdars on 15-1-85 and also executed the letter under the original of Ex. D-5 for the surrender of possession of the property. The learned II Additional Sessions Judge has observed that none of the panchayatdars by names Pkm Shahul Hamid and M. Shahul Hamid, in whose presence the first accused said to have agreed to surrender possession is examined and even the original of Ex. P-5, which is said to be the surrender deed, has not been produced before the Court. The accused person are denying the surrender of the disputed house. When the surrender is denied by the accused and the prosecution is relying on a letter for the said surrender, the prosecution can prove the surrender and taking of possession of the building by P.W. 8 only by the production of the said surrender letter. But stating that the original of Ex. P-5 was produced elsewhere, a certified copy is marked on the prosecution side to support the surrender of possession by the first accused. As the accused has denied the surrender, without producing the original letter for comparison of signature, the Court cannot accept the surrender of the property in favour of P.W. 8. Further P.W. 1 would admit that the bureau, ceiling fan and the sewing machine, table, belonging to the first accused are still in the disputed house. It is also admitted by the prosecution witnesses that on 18-1-85, the third accused/third respondent therein launched a complaint in the police station against P.W. 8 for forcibly entering into a house when the inmates of the house were away. In the statement of the accused under Section 313 Code of Criminal Procedure, it has been stated that the accused 1 and 2 had been away to attend a marriage and the fourth accused had been to attend an interview in Mukkoodal Panchayat Union Office and as both of them were away from the house, keeping the house locked, but when the fourth accused returned in the evening, he found P.W. 8 and others in the house entered by break opening the lock and he sent message to his father to come back immediately and thereafter filed a complaint against P.W. 8 and others. It is admitted by the prosecution that on 19-1-89, a complaint was launched by the fourth accused, son of the first accused, for trespass into the house by P.W. 8 and others and this complaint also was registered in Crime No. 18/85. The accused have produced the records along with their statement under Section 313, Code of Criminal Procedure to show that they were invitees of a marriage in Sethuraikal, performed on 18-1-1985 and that the fourth accused had to attend an interview in the Mukkoodal Panchayat Union Office. So, the accused were able to produce records to show that they were away from the house on 18-1-1985 and soon after they returned hearing the trespass, they launched a complaint against P.W. 8 also. If really the first accused had surrendered possession voluntarily on 15-1-1985 his son, the fourth accused, would not have filed the complaint in the police station for the alleged trespass, It is also in evidence that because the accused party gave complaint against P.W. 8, the Executive Magistrate viz. Tahsildar, initiated proceedings restraining both parties not to enter into this property. Therefore, taking into consideration of the presence of the articles belonging to the first accused in the disputed house and also for want of proof for the surrender of possession, the learned II Additional Sessions Judge has found that the taking of the possession of this property by P.W. 8 is doubtful and suspicious. I do not find any error in this finding in view of the reasons given above.

5. The evidence of the prosecution witnesses reads as though these respondents entered into the disputed house only for the purpose of committing dacoity. The witnesses would state that this accused and others broke open the lock, entered into the house and removed away the suitcase in spite of the objection raised by P.W. 1. Therefore, according to the evidence of the prosecution witnesses, these accused did not come to re-occupy the house but only to commit decoity in the house. The owner of the property P.W. 8 would state that after taking possession of the building on 15-1-1985, a function relating to the marriage of his relation, was arranged in this building and thereafter he left for Madras keeping the house under lock and key but under the supervision of his father-in-law P.W. 1. Admittedly, the house was not occupied by anybody after 15-1-1985 and it was a vacant house kept under lock and key. It is quite strange and highly artificial to say that all these respondents with some others including their wives, came with dangerous weapons to commit dacoity in the vacant house, which was kept under the lock and key, not occupied by anybody. Therefore, this is also another circumstance exposing the hollowness in the prosecution case.

6. The four witnesses, viz, P.Ws. 1, 2, 4 and 5 are the eye-witnesses to the alleged occurrence and the learned Judge has given reasons for not believing the testimony of these witnesses. P.W. 1 is the father-in-law of P.W. 8 and he is residing in some other street away from the disputed property. However, he would say that as the police bandobust was removed on 12-1-1985, he came to sleep in from of this house in the pial of another person to look after this vacant house. When there is no one occupying this house and the Executive Magistrate passed orders directing both parties not to occupy this house, it is highly unbelievable that P.W. 1, the father-in-law of the house owner, took his bed in an opposite house to guard this house during night time. Certainly, this is also artificial in nature. Admittedly, P.W. 2, who is working in the pallivasal to which P.W. 1 also was attached is receiving the salary from P.W. 1 P.W. 4 has stated in his evidence that the vessels kept in the house were carried by the accused 1 to 4 outside and they were thrown over the hay rick. But P.Ws. 1 and 2, the other eye-witnesses, have never stated that the accused 1 and 4 brought out anything like vessels and threw them over the hayrick. Therefore, P.W. 4 exaggarates and embelishes the alleged activity of these accused persons, which would naturally create doubt as to the veracity of his testimony. P.W. 5, who is residing in the backside of the disputed house, would say in his evidence that on hearing the noise, when he saw, he found the accused persons coming out through the back door when they left the house. But it is not the version of P.Ws. 1, 2 and 4 that these accused persons left the house through the backdoor. On the other hand, all those witnesses have stated that the accused persons left the house through the front door with a suit case in their hands. P.W. 3, the Village Administrative Officer who accompanied the police officials when the observation mahazar was prepared has found that the backdoor was kept under lock and key and the lock was intact even at the time when they inspected the building. Therefore, the evidence of P.W. 5 also has been found to be false. As the learned Judge has assessed the evidence of these witnesses and has found them untrustworthy for the reasons stated above, he is perfectly right in not relying upon the evidence of all these witnesses.

7. Even though P.W. 1 has stated in his evidence that he, Pakkiri Mohideen and Sulaiman, whose names are not mentioned in the First Information Report, were sleeping in front of the disputed house, the said Pakkiri Mohideen or Sulaiman were not examined as witnesses to prove the alleged dacoity. This circumstance also has been taken into consideration by the learned Judge.

8. Another circumstance to be noted is that when the culprits came to commit dacoity secretly in the midnight, naturally their operation would be silent without causing any noise which may attract the attention of others. In this case, the evidence of P.Ws. 1 and 2 is that the second accused was having a hammer in his hand and he broke the lock of the house with a huge noise by which he was awaken and when he warned him not to break the lock, the third accused threatened him with velstick. This also appears to be highly improbable. If these respondents wanted to occupy the house in the aggressive manner unafraid of others, they could have come in the day time itself. But when the prosecution evidence is that they came by 1-30 midnight, then they should have come surreptitiously to achieve their objective without the knowledge of others. If that was so, the second accused would not have broken open the lock with a hammer creating huge noise as though the work was carried in a blacksmithy, awaking the persons sleeping in the neighbouring houses. It is because of the noise of break opening the lock, P.W. 1 says that he got up and warned them not to break, but as they threatened him with deadly weapons, he could not do anything. Therefore, this version of the prosecution witnesses also is highly artificial and the learned Judge was right in rejecting the testimony of these witnesses.

9. The prosecution case is that P.W. 8 had left a suit-case in this house, with a cash of Rupees 6,315/- and gold jewels of 23.2 grams and these were taken away by the accused. In the complaint Ex. P-1, it is not even stated that cash and jewels were kept in the house. There is no need for P.W. 8, who is a resident of Madras, to leave the cash of Rs. 6,315/- and jewels in this house, which was in dispute, because the fourth accused had launched a complaint that P.W. 8 had trespassed into the house. If really the cash and jewels were left in the house by P.W. 8, he would not have left for Madras without informing that fact to his father-in-law P.W. 1. The theft of cash and jewels is not mentioned in the First Information Report. Therefore, the learned Additional Sessions Judge has considered this aspect also as an infirmity in the prosecution case.

10. The prosecution has left in evidence through P.W. 9 as though the third accused was arrested in a temple where he was hiding and on his arrest he gave the statement Ex. P-6 leading to the recovery of the cash and jewels. But the fact that the third accused had obtained anticipatory bail is admitted by the police officials and for the arrest of the third accused even after the anticipatory bail that was granted to him, he sent a telegram against the police officials. When already, he had obtained the anticipatory bail, he would not have been hiding in a temple apprehending arrest by police officials. Therefore, this circumstance also has been considered by the learned Additional Sessions Judge and he has disbelieved the alleged confession and recovery of the articles. The learned II Additional Sessions Judge has also compared the alleged signature of P.W. 9 Ex. P-6 with his admitted signature in the deposition and had found that P.W. 9 could not have signed in Ex. P-6, which is completely different.

11. The learned counsel for the revision petitioner argues that the lower Appellate Court had not considered the evidence of P.W. 3 and there is evidence from P.Ws. 6 and 7 that a function was performed in this house on 17-1-1985 in connection with the marriage of the relation of P.W. 8 and therefore when the prosecution has proved the possession of this building by P.W. 8 on 17-1-1985, the trespass subsequently by the accused has to believed. P.W. 8 would say that for the marriage of his relation, the bridegroom was decorated in his house on 17-1-1985. But he admits that the marriage was performed in the house of the bride P.W. 8 came to Kallidaikurichi only on 14-1-1985 from Madras. On that day, admittedly, the house was in the occupation of the first accused. Therefore, P.W. 8 would not have even expected that he would be able to get possession of the building for arranging the function of decorating the bridegroom in this house as it was in the possession of the first accused. So, there is no possibility for conducting the function for decorating the bridegroom in this house on 17-1-1985 and the learned Judge has rightly disbelieved the evidence of P.Ws. 6 and 7 also.

12. P.W, 3 has spoken only about the inspection of the house on 13-1-1985 along with the police officials. His evidence is in no way connects the accused with the crime. Therefore, there is no necessity to give any importance to the evidence of P.W. 3.

13. The learned II Additional Sessions Judge has thoroughly considered the evidence of all the witnesses on the prosecution side and has given reasons cogently to reject their testimony and it cannot be stated that there is failure of justice in the order of acquittal. Further, he has also taken into consideration of the circumstances to hold that P.W. 8 could not have been in possession of this property on the date of the alleged dacoity. As I find the reasoning given by the Court below is fairly sound, this Court, with its revisional jurisdiction, finds no justification to disturb the finding of the Court below. Therefore, this revision by P.W. 1, who is not even the victim of the alleged dacoity deserves to be dismissed.

14. In the result the revision is dismissed.

Petition dismissed.

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