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V.PERUMAL SAMY versus K.KOODALINGAM

High Court of Madras

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V.Perumal Samy v. K.Koodalingam - Criminal Revision Case No.89 of 2005 [2007] RD-TN 1527 (19 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 19/04/2007

CORAM

THE HONOURABLE MR. JUSTICE P. MURGESEN

Criminal Revision Case No.89 of 2005

V.Perumal Samy .. Petitioner defacto complainant Vs

1.K.Koodalingam

2.Oyyappan

3.Muthaiyah

4.Oyyammal .. Respondents

accused 1 to 4

5.State rep. By

The Inspector of Police

Aamathur Police sTation,

virudhunagar District. .. Respondent complainant

Criminal Revision Case filed under Section 397 & 401 of Cr.P.C. to set aside the order of the learned Judicial Magistrate No.2 made in C.C.No.154 of 2002 dated 7.12.2005 and remand the case to the trial Court for disposal according to law.

For Petitioner .. Mr.S.Nagamuthu For Respondents 1 to 4 .. Mr.G.Mariappan For 5th Respondent .. Mr.Siva Iyyappan, Govt.Advocate (Crl.Side) :ORDER



The Revision is directed against the order of the learned Judicial Magistrate No.2 made in C.C.No.154 of 2002 dated 7.12.2005.

2.The case of the prosecution is briefly as follows: a)P.W.1 is the resident if Muthalapuram; P.W.2 is his wife; P.W.3 is the son of P.Ws 1 & 2; P.Ws 4, 5, 6 & 7 are the residents of Muthalapuram. The accused are known to them.

b)One Subbulakshmi is the daughter of first accused. She is a virgin. She left her parental house and gone to her relative's house by name Gopalsami. Said Gopalsami printed invitations for the marriage of Subbulakshmi with his son and in that invitation, the name of P.W.1 was printed without his consent. This was questioned by P.W.1.

c)On 18.11.2001, P.W.1 was sleeping in his house along with his wife and two sons. Usually, the lights will be burning in the top of his house and in verandah. At about 5.30 a.m., on hearing the noise, he saw the accused from the upstairs of his house who came with weapons and damaged his car and threatened to murder him. Therefore, he lodged a complaint to the Aamathur Police Station.

d)P.W.10-Special Inspector of Police attached to Aamathur Police Station received the complaint and registered the case in Crime No.231 of 2001 under Sections 452, 506(2) IPC and 3 of PPD Act. He prepared the printed F.I.R.- Ex.P6. He placed the case before the Inspector of Police. e)P.W.11-Inspector of Police, Additional incharge of that station took up further investigation. He visited the scene of occurrence, prepared the observation mahazar-Ex.P4 and the rough sketch-Ex.P7 in the presence of the witnesses Kannan-P.W.7 and Marumuthu-P.W.5. He also made arrangements to take photographs of the scene of occurrence. Before the same witnesses, he also recovered the broken parts of the Car under Ex.P5. He examined the witnesses P.Ws 1 to 8 and recorded their statements. On 18.11.2001 he arrested A1 and A2. He recorded the confessional statements of the accused before witnesses. The admissible portion of the confessional statement is marked as Ex.P8. On the basis of the admissible portion of the confessional statements, M.Os 1 to 4 were recovered under Ex.P9 and sent the

same to the Court. He also sent the recovered articles to the Court through Form 95 under Ex.P10. He sent the damaged car for examination by the Motor Vehicle Inspector. Ex.P11 is the Motor Vehicle Inspector's Report. Thereafter, he handed over the investigation to his successor. f)P.W.9-Inspector of Police attached to Aamathur Police Station took up further investigation. He examined P.W. 1 and one Palaniapillai and recorded their statements. He completed the investigation and filed charge sheet against the accused under Sections 452, 427 and 506(2) IPC.

3.The prosecution in order to bring home the charges against the accused, examined P.Ws 1 to 11 and filed Exs P1 to P11 and marked M.Os 1 to 8.

4.When the accused were examined under Section 313 of Cr.P.C., in respect of the incriminating materials appearing against them through the evidence adduced by the prosecution, they have come forward with the version of total denial and pleaded innocence.

5.On consideration of the entire evidence on record, the learned Judicial Magistrate No.2, Virudhunagar District in C.C.No.154 of 2002 dated 7.12.2005 found the accused not guilty and acquitted them of the charges levelled against them.

6.Aggrieved over the Judgment of acquittal, the present Criminal Revision Case has been filed.

7.Point for Determination:

1.Whether the Revision is maintainable ? POINT:

8.The Powers of revisional Court has been clarified by the Supreme Court in 2002 SCC (Cri) 1067 and 1448 and in (2004) XIII SCC 376.

9. In (2004) XIII Supreme Court Cases 376 (Hydru VS State of Kerala) the Supreme Court had observed as under:

"It is well settled that in revision against acquittal by a private party, the powers of the Revisional Court are very limited. It can interfere only if there is any procedural

irregularity or material evidence has been overlooked or misread by the Subordinate Court. If upon reappraisal of evidence, two views are possible, it is not permissible even for the appellate Court in appeal against acquittal to interfere with the same, much less in revision where the powers are much narrower."

10. In 2002 Supreme Court Cases (Cri) 1067 (T.N.Dhakkal VS James Basnett and another) the Supreme Court held as under:

"Though the High Court has revisional jurisdiction under Section 401 Cr.P.C and can exercise its discretionary jurisdiction to correct miscarriage of justice, but whether or not, there is justification for the exercise of that discretionary jurisdiction would depend upon the facts and circumstances of each case. The controlling power of the High Court being discretionary, it is required to be exercised only in the interest of justice, having regard to all the facts and circumstances of each particular case and not mechanically."

11. In the case of Bindeshwari Prasad Singh alias B.P.singh and others Vs State of Bihar (Now Jharkhand) and another (2002 Supreme Court Cases (Cri) 1448) it was held:

"In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted."

12.As per the decision of the Hon'ble Supreme Court, the power of this Court is limited, which can interfere only when the trial Court overlooked the material evidence and when there is miscarriage of justice.

13.P.W.1 is the resident if Muthalapuram; P.W.2 is his wife; P.W.3 is the son of P.Ws 1 & 2; P.Ws 4, 5, 6 & 7 are the residents of Muthalapuram. The accused are known to them. According to the prosecution, the motive for the crime that the

daughter of the first accused- Subbulakshmi left her parental house and gone to her relative's house by name Gopalsami. Said Gopalsami printed invitations for the marriage of Subbulakshmi with his son and in that invitation, the name of P.W.1 was printed without his consent. So, there was enmity between the accused and the complainant.

14.The learned counsel for the accused argued that there was delay of five hours in lodging the complaint. The learned counsel submitted that eventhough the occurrence took place on 18.11.2001 at about 5.30 a.m., the complaint was lodged only at 11 O' clock. The distance between the scene of crime and the Police Station is about 7 k.m. The learned counsel further submitted that though information was given to the Superintendent of Police, that was not considered.

15.No doubt, there was a delay of five hours. Any how the occurrence was not denied and it is not shown that there is another earlier F.I.R. Therefore, the delay of five hours will not affect the case of prosecution.

16.Then the learned counsel argued that there is no light in the scene of occurrence and P.W.1 has not mentioned about that aspect in the complaint. But on going through the evidence of P.W.1, it is found that there was a light burning in the top of the house of P.W.1. So, the argument of the learned counsel that there was no light in the scene of occurrence is not correct.

17.The learned counsel also argued that there was discrepancy in the weapons used by the accused. He argued that the weapons mentioned in the F.I.R. was not mentioned in the evidence of P.W.1. The occurrence took place in 2001 and the evidence was given in the year 2003. So, there is possibility of forgetting some details about the incidents and there may be some discrepancies. But the vehicle of the victim was damaged which is evident from the Motor Vehicle Inspector's report and M.Os 5 to 7 are the broken part of the vehicle which were recovered by the Investigation Officer. So, it is clear that there was a damage to the vehicle.

18.Further, the learned Magistrate found that there was no threat as claimed by the prosecution. But on going through the evidence available on record, it is clear that there was a threat by the accused. P.MURGESEN J,

rpa

19.So, while analysing the case in the light of the Supreme Court decisions referred above, this is the fit case to be remitted back to the trial Court.

20.In the result, the Criminal Revision Case is allowed. The order the learned Judicial Magistrate No.2, Virudhunagar, made in C.C.No.154 of 2002 dated 7.12.2005. The matter is remitted back to the trial Judge who shall dispose of the case in accordance with law, without being influenced by the order passed by this Court in this petition.

To

1.The learned Judicial Magistrate No.2, Virudhunagar. 2.The Inspector of Police,Aamathur Police Station, Virudhunagar District.

3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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